[Senate Hearing 111-1134]
[From the U.S. Government Publishing Office]
S. Hrg. 111-1134
EMPLOYMENT NON-DISCRIMINATION ACT: ENSURING OPPORTUNITY FOR ALL
AMERICANS
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
ON
EXAMINING S. 1584, TO PROHIBIT EMPLOYMENT DISCRIMINATION ON THE BASIS
OF SEXUAL ORIENTATION OR GENDER IDENTITY
__________
NOVEMBER 5, 2009
__________
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
TOM HARKIN, Iowa, Chairman
CHRISTOPHER J. DODD, Connecticut MICHAEL B. ENZI, Wyoming
BARBARA A. MIKULSKI, Maryland JUDD GREGG, New Hampshire
JEFF BINGAMAN, New Mexico LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington RICHARD BURR, North Carolina
JACK REED, Rhode Island JOHNNY ISAKSON, Georgia
BERNARD SANDERS (I), Vermont JOHN McCAIN, Arizona
SHERROD BROWN, Ohio ORRIN G. HATCH, Utah
ROBERT P. CASEY, JR., Pennsylvania LISA MURKOWSKI, Alaska
KAY R. HAGAN, North Carolina TOM COBURN, M.D., Oklahoma
JEFF MERKLEY, Oregon PAT ROBERTS, Kansas
AL FRANKEN, Minnesota
MICHAEL F. BENNET, Colorado
J. Michael Meyers, Staff Director and Chief Counsel
Frank Macchiarola, Republican Staff Director and Chief Counsel
(ii)
?
C O N T E N T S
__________
STATEMENTS
THURSDAY, NOVEMBER 5, 2009
Page
Harkin, Hon. Tom, Chairman, Committee on Health, Education,
Labor, and Pensions, opening statement......................... 1
Merkley, Hon. Jeff, a U.S. Senator from the State of Oregon...... 3
Franken, Hon. Al, a U.S. Senator from the State of Minnesota..... 4
Perez, Thomas E., Assistant Attorney General, Civil Rights
Division, U.S. Department of Justice, Washington, DC........... 5
Prepared statement........................................... 8
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of
Pennsylvania................................................... 12
Bennet, Hon. Michael F., a U.S. Senator from the State of
Colorado....................................................... 16
Prepared statement........................................... 18
Norton, Helen, Associate Professor of Law, University of Colorado
School of Law, Boulder, CO..................................... 19
Prepared statement........................................... 21
Madigan, Hon. Lisa, Attorney General, State of Illinois, Chicago,
IL............................................................. 25
Prepared statement........................................... 27
Nguyen, Virginia, Diversity and Inclusion Team Member, Nike,
Inc., Beaverton, OR............................................ 33
Prepared statement........................................... 34
Carney, Michael P., Police Officer, City of Springfield Police
Department, Springfield, MA.................................... 36
Prepared statement........................................... 38
Parshall, Craig L., Senior Vice President and General Counsel,
National Religious Broadcasters Association, Manassas, VA...... 40
Prepared statement........................................... 42
Olson, Camille A., Partner, Seyfarth Shaw, LLP, Chicago, IL...... 47
Prepared statement........................................... 50
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Letter from the General Conference, Seventh Day Adventist
Church..................................................... 64
Senator Dodd................................................. 76
Senator Brown................................................ 76
Senator Sanders.............................................. 77
Statements of Support........................................ 78
Letter from the U.S. Government Accountability Office (GAO).. 103
Letters of Support........................................... 117
Letter of Opposition......................................... 219
Response to questions of Senator Enzi by:
Thomas E. Perez.......................................... 221
Helen Norton............................................. 223
(iii)
EMPLOYMENT NON-DISCRIMINATION ACT:
ENSURING OPPORTUNITY FOR
ALL AMERICANS
----------
THURSDAY, NOVEMBER 5, 2009
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 10:03 a.m., in
Room SD-430, Dirksen Senate Office Building, Hon. Tom Harkin,
chairman of the committee, presiding.
Present: Senators Harkin, Casey, Merkley, Franken, and
Bennet.
Opening Statement of Senator Harkin
The Chairman. The Senate Committee on Health, Education,
Labor, and Pensions will please come to order.
I welcome everyone here today. Our committee will hear
testimony on an important piece of civil rights legislation,
the Employment Nondiscrimination Act, also known as ENDA, and
this is the first hearing we've had on this since 2002.
The issue here could not be more simple. We're talking
about a fundamental American value: equal treatment for all, a
principle that citizens who work hard and pay their taxes and
contribute to their communities deserve fair treatment and
should not be discriminated against.
Over the last 45 years, we've seen great strides toward
eliminating discrimination in the workplace. The Civil Rights
Act of 1964 prohibited discrimination on the basis of race,
sex, national origin, and religion. The Age Discrimination in
Employment Act in 1967 prohibited discrimination on the basis
of age. One that I'm even more familiar with, the Americans
With Disabilities Act in 1990 prohibited discrimination on the
basis of disability.
So, it's time, I believe, at long last for us to prohibit
discrimination on the basis of sexual orientation and gender
identity, as well. Such discrimination is wrong and shouldn't
be tolerated in our society.
The former chair of this committee, Senator Kennedy, worked
his entire career to ensure opportunity for all Americans. He
first introduced this legislation in 1994. So, today, by taking
up this important bill, we'll continue Senator Kennedy's work,
and we continue the proud commitment of this committee to
uphold fair treatment for working Americans.
I'm proud that one of our newest members, Senator Merkley,
led the effort in his own State of Oregon for full equality for
all Americans, and has established himself as a champion on
these issues already here in the Senate. I thank him for his
leadership. I look forward to working with him closely as this
important legislation moves through Congress.
Full equality for lesbian, gay, bisexual, and transgender
Americans is a vital issue, but it's by no means a new one. As
we'll hear today, our States have already led the way toward
ensuring full equality for our fellow Americans. Currently, the
District of Columbia and 12 States--including Iowa, I am proud
to say--have enacted statutes that prohibit discrimination on
the basis of sexual orientation and gender identity. Another
nine States bar job discrimination on the basis of sexual
orientation alone. These States have found that full equality
for all their citizens is not only the right thing to do, but
it's beneficial to us all.
Likewise, leading companies across the country have found
that equality in the workplace is not only the right thing to
do, but makes good business sense. Eighty-seven percent of
Fortune 500 companies have sexual orientation nondiscrimination
policies and 41 percent have gender identity nondiscrimination
policies. So, I look forward to hearing from our witnesses
today about the positive experiences that businesses have had.
While these States and businesses provide important
protections and should be commended, the harsh reality is that
employers in most States in this country can still fire, refuse
to hire, or otherwise discriminate against individuals because
of their sexual orientation or gender identity; and,
shockingly, they can do so within the law. As we'll hear today,
too many hardworking Americans are being judged not by their
talent and ability and qualifications, but by their sexual
orientation or gender identity. Unfortunately, we can cite
example after example of bigotry and blatant job
discrimination.
Moreover, it's not just private employers that have been
guilty of discrimination; unfortunately, State governments have
also engaged in a widespread pattern of unconstitutional
employment discrimination against lesbian, gay, bisexual, and
transgender employees. I particularly refer my colleagues to
the voluminous study by the Charles R. Williams Institute at
UCLA Law School, which documented discrimination on the basis
of sexual orientation and gender identity in State employment.
Equal opportunity is not just an abstract principle or a
matter of statistics. Decent, hardworking Americans are being
hurt by discrimination every day.
We're here today because of people like Mike Carney, one of
our witnesses, a decorated police officer who was discriminated
against because of his sexual orientation.
We're here because of people like Kimya Afi Ayodele, a
social worker with more than two decades of experience. She
suffered through a year of threatening messages, vandalism to
her car, and slurs uttered in the workplace. Then in 2003, she
was fired. Her supervisors told her, ``This would not be
happening if you were not a lesbian.'' Kimya sought legal help,
but quickly learned that nothing in her State's law protected
her from being fired because of her sexual orientation.
We're also here because of people like Diane Schroer, who
is, I understand, here in the audience with us today. Diane is
one of the many transgender Americans who we hope to protect
through this bill. For 25 years, Diane served in the U.S. Army,
rising through the ranks to become a Special Forces commander.
After retiring from the military, she applied for a position as
a terrorism specialist with the Congressional Research Service
at the Library of Congress. So, it's not just States. After
being offered the job, she explained to the Library that she
was transitioning from living as David Schroer to living as
Diane Schroer, consistent with her female gender identity.
Although David had been the Library's top choice for the
position, the Library notified her that Diane was, quote, ``not
a good fit,'' and rescinded the job offer.
Qualified workers should not be turned away or have to fear
losing their livelihood for reasons that have nothing to do
with their capabilities, skills, or performance. Such practices
are un-American, and it's time for them to stop.
This bill is simple. It makes clear that private
businesses, public employers, and labor unions cannot make
employment decisions--hiring, firing, promotion, or
compensation--because of a person's actual or perceived sexual
orientation or gender identity. It contains the same exemptions
as we have in title VII for small businesses and religious
organizations, and current rules applicable to the Armed Forces
are not affected.
As we will hear today, this legislation follows in the
footsteps of our existing civil rights laws. Just as when we
passed those earlier civil rights bills, we are hearing claims
today that ENDA will lead to a flood of lawsuits or be an undue
burden on religious organizations. These claims are just plain
false.
Indeed, we are pleased to have broad bipartisan support and
the endorsement of civil rights organizations, countless
businesses, and religious leaders. It's long past time to
eliminate bigotry in the workplace and ensure equal opportunity
for all Americans. It's time to make clear that lesbian, gay,
bisexual, and transgender Americans are first-class citizens.
They are full and welcome members of our American family, and
they deserve the same civil rights protections as all other
Americans.
With that, I would be glad to recognize, again, one of our
pre-eminent leaders in this whole field who led, as I said
earlier, the effort in Oregon when he was in that State
government, and now leading the effort here in the Federal
Government.
Senator Merkley.
Statement of Senator Merkley
Senator Merkley. Thank you very much, Chairman. Thank you
for convening this hearing, and thank you for your excellent
remarks reviewing the challenges we face, the issues we face,
and their importance.
I particularly want to welcome Virginia Nguyen today, who
will be one of our witnesses and who's traveled here from my
home State of Oregon to represent Nike, which has been a real
champion on nondiscrimination policies.
Martin Luther King said that,
``Human progress is neither automatic nor inevitable.
Every step toward the goal of justice requires
sacrifice, suffering, and struggle, tireless exertions,
and passionate concern of dedicated individuals.''
Well, we are on the path to one of those struggles for
human progress, for a struggle to have full equality under the
law, full equal opportunity. There can never be equal
opportunity if we do not have equal opportunity in employment.
Discrimination is simply wrong. This bill takes us a major step
towards equality in America, and I look forward to hearing from
our witnesses and hearing the comments of our colleagues as we
work together.
I want to acknowledge, before our first panel, the debt we
owe to Senator Kennedy. As the Chairman noted, he introduced
the first ENDA more than 15 years ago. I know he would have
liked to have been in this hearing room to continue to push and
be a part of another victory in this battle for civil rights.
But, it's certainly part of his legacy that we are here, and it
will be a tremendous tribute to him when this bill is adopted
and our Nation takes a great stride toward equality.
I also want to thank my co-sponsor, Susan Collins, who has
stepped forward to show bipartisan leadership, reflecting the
values of Maine, her values, and the values of the United
States of America. I'm delighted to have her join me in this
journey.
Thank you very much, Mr. Chair.
The Chairman. Thank you, Senator Merkley.
Senator Franken.
Statement of Senator Franken
Senator Franken. Mr. Chairman, thank you for holding
today's hearing on this vital topic. I want to thank all the
witnesses who are here today, for sharing your expertise.
In preparing for today's hearing, I reviewed all the
witnesses' testimony and tried to familiarize myself with the
ins and outs of the technical definitions and title VII, the
exemptions and everything else. But, at some point, I paused to
reflect that today, in 2009, in almost 30 States in this
country, it's perfectly legal to fire somebody because they're
gay or because they're suspected to be gay. You can be a hard
worker, you can show up on time, get exemplary performance
reviews, but if your boss discovers or suspects that you're gay
or transgendered, they can fire you and there's nothing you can
do about it.
Growing up, my kids read in history books about a time in
our country when it was perfectly legal to fire somebody or
refuse to hire somebody because they were black or a woman. For
them it was a concept that they couldn't understand. I hope
that my future grandkids will only read about when it was legal
to fire someone because they're gay or transgender. I don't
want them to actually see it; I want them to ask me, ``What
were people thinking?''
Now, most Minnesotans attend religious services every week.
Minnesota is home to 19 Fortune 500 companies. Minnesotans
enjoy a relatively, to the rest of the country, high standard
of living. So, it might surprise some of you that the Minnesota
Human Rights Act was passed in 1993. This law protects workers
from discrimination based on sexual orientation and gender
identity, just like this bill does. This law has been
protecting workers from discrimination for 15 years, and
Minnesota's sky has not fallen.
Minnesota's basically the same as it was before this law
was passed, with only one small exception. About 20 or so
people per year exercise their rights under the law after they
are discriminated against based on their sexual orientation or
gender identity. That's it. That's the difference.
Today we have a chance to extend the same commonsense
protections to every American and to every American worker by
passing ENDA.
So, thank you again, Mr. Chairman, for calling this crucial
hearing.
The Chairman. Thank you both. Thanks, Senator Franken,
Senator Merkley, for being here.
Thank you all. This is, as has been said, I think, one of
the most important things we can be about today.
Our first panel will be the Honorable Thomas Perez,
Assistant Attorney General for the Civil Rights Division of the
U.S. Department of Justice. During the first Bush and Clinton
administrations, he was a Federal prosecutor at the Department
of Justice, where he prosecuted and supervised some of the
Department's high- profile civil rights cases. Later he served
as deputy assistant attorney general for civil rights under
Attorney General Reno and director of the Office for Civil
Rights at the Department of Health and Human Services. In
addition, Assistant Attorney General Perez served as special
counsel to the former chairman of this committee, Senator
Kennedy. Prior to his confirmation as Assistant Attorney
General for the Civil Rights Division, he served as the
secretary of Maryland's Department of Labor, Licensing, and
Regulation.
Assistant Attorney General Perez, thank you very much for
being here. Thank you for your long history of support for
civil rights. Your statement will be made a part of the record,
and I invite you to please proceed as you so desire. But, if
you could keep it to 5 or 7, 8 minutes, something like that,
I'd appreciate that so we can engage in a conversation.
STATEMENT OF THOMAS E. PEREZ, ASSISTANT ATTORNEY GENERAL, CIVIL
RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC
Mr. Perez. Thank you so much, Mr. Chairman. It's an honor
to be here and thank you for all of your kind words on behalf
of Senator Kennedy.
It's impossible to sit in this room without thinking of
Senator Kennedy, and I had the privilege of working on this
bill back in 1995--year 3 or so of the Marathon Relay--had the
privilege of working on hate crimes. Lucky number 13; 13 years
after its introduction, the bill was passed. The Civil Rights
Act of 1964 was first introduced in 1948. So, civil rights, if
nothing else, is about persistence. Your persistence and
leadership on these areas, and Senator Merkley and Senator
Franken, your leadership in this, has been remarkable. I
appreciate your taking the baton and moving the ball forward.
Thank you very much for all of your work.
It really is a privilege to testify here today and to voice
the Obama administration's strong support for fully inclusive
legislation that prohibits discrimination on the basis of
sexual orientation and gender identity.
The Civil Rights Division serves as the conscience of the
Federal Government. We seek to advance this Nation's long
struggle to embrace the principle so eloquently captured by Dr.
King, that persons should be judged by the content of their
character and not on the race, color, sex, national origin,
religion, or any other irrelevant factor.
Just last month, Congress passed the first Federal law that
provides civil rights protections to lesbian, gay, bisexual,
and transgendered individuals. I was so proud to be at the
signing ceremony last week, and I applaud all of you for your
efforts in securing the passage of the Matthew Shepard and
James Byrd, Jr., Hate Crimes Prevention Act.
Today we are here because passage of ENDA would provide us
with the tool we need to fill another hole in our authority. We
have come too far in the struggle for equal justice under law
to remain silent when our LGBT brothers and sisters are still
being mistreated and ostracized for reasons that have
absolutely nothing to do with their skills or ability, and
everything to do with myths, stereotypes, and prejudice. For
this reason, the passage of ENDA is a top legislative priority
for the Obama administration.
The Civil Rights Division regularly hears from individuals
describing the same kind of hostility, bigotry, and hatred
based on sexual orientation or gender identity that other
groups faced for much of our history. There's nothing more
frustrating for a law enforcement officer than to hear a
horrific tale and to tell that person, ``You have been wronged,
and there's nothing I can do for you.'' That is a horrible
feeling, whether it's hate crimes or whether it is
discrimination in the workplace. This bill is going to enable
us to correct that.
Throughout the decades that followed the passage of the
Civil Rights Act of 1964, we as a nation have recognized a need
to attend to the unfinished business in the fight for fair
employment practices in the workplace, and that is what this
bill is about: fair employment practices in the workplace.
Accordingly, under your leadership, Mr. Chairman, and so
many others, we've seen the passage of the ADEA, we've seen
passage of the Pregnancy Discrimination Act, and, under your
leadership--and I have a vivid memory of the 10-year
anniversary in which you spoke so eloquently, all in sign, at
the FDR Memorial, Mr. Chairman. I didn't understand sign, but I
understood what you were saying, and it was so powerful. The
Obama administration strongly believes that ENDA must be the
next step in the unfinished business of America, which is civil
rights, and that this act will be a worthy addition to its
venerable predecessors.
Underscoring the need for a Federal statute is the fact
that 29 States, as you have correctly pointed out, still
provide no protections for lesbian, gay, and bisexual and
transgendered individuals in the workplace, and 38 States
provide no protection for transgendered workers. LGBT employees
in those States have no way to redress workplace
discrimination.
We see so many stories, as indicated in the Williams
Institute Report. For instance, an openly lesbian probation
officer in Carroll County, IN, was allegedly denied promotion
to chief probation officer because of her sexual orientation.
The judge who refused to promote her reportedly told her it was
because she was a lesbian, and said she was embarrassing the
court by dating a woman, and asked other court employees about
her sexual orientation and personal life. A man with no prior
probation experience got the job. That is not in the best
interests of public safety, I would respectfully submit.
An openly gay employee of the State-run Virginia Museum of
Natural History was allegedly forced to resign shortly after
receiving a positive evaluation that otherwise would have
resulted in a raise. The executive director expressed concerns
that the employee's sexual orientation would jeopardize
donations to the museum. A Virginia appellate court dismissed
his sexual orientation discrimination complaint, concluding
that the Governor's executive order prohibiting such
discrimination did not create a private right of action.
Under ENDA, we would have the authority to investigate
these two cases, because the Justice Department enforces ENDA
against State and local governments. These examples are but a
sampling of the disturbing number of workplace discrimination
incidents against LGBT Americans in recent years.
Prohibiting employment discrimination on the basis of
sexual orientation and gender identity is not only about basic
fairness, it is also about enlightened self-interest. It is not
only a fair employment practice; I would respectfully submit,
and our witness from Nike will affirm, that it is a sound
business practice and critical to competing in the global
economy.
As we work to revitalize and strengthen our economy, we
cannot afford to waste talent or allow workplace bias and
hostility to impede productivity, especially when many
businesses operate in multiple cities and States. There is no
reason why, for example, LGBT employees working for a company
in Wisconsin or Oregon or Minnesota, which have these
protections, should have their right to a living jeopardized if
they moved to Michigan or another State that did not have such
protection.
And finally, I'd like to dispel, Mr. Chairman--and you did
so in your opening remarks, and others have done so, as well--
some of the misconceptions about the scope and impact of the
bill.
First, ENDA covers only cases of intentional
discrimination; it does not cover disparate impact cases.
Second, it exempts businesses with fewer than 15 employees,
tax-exempt private membership clubs, or religious
organizations.
Third, ENDA contains a religious exemption for religious
organizations and will not infringe upon an individual's right
to practice his or her faith or exercise first amendment rights
of free speech on these or other issues.
Finally, there is nothing to suggest that ENDA will burden
employers, unleash a flood of complaints that would overwhelm
the EEOC or the Department of Justice, or clog the Federal
courts. Attorney General Madigan will talk about the experience
of Illinois, which has not seen the floodgates that were
predicted by some.
The experience of State and local governments with similar
statutes for decades demonstrates that complaints under these
statutes make up a relatively small portion of total employment
discrimination complaints.
It really is an honor to be here today. Senator Kennedy
said many times, and my friend and mentor Michael Myers heard
it many more times than I have, that civil rights, indeed,
remains the unfinished business of America. We finished some of
the business a week ago, when the President signed the Hate
Crimes bill, and I can think of no better tribute, again, to
the late Senator than to pass this bill and send it to
President Obama for his signature. Last week was lucky 13; 13
years, Hate Crimes. Hopefully, this year will be lucky 15 and
that will be the passage of ENDA.
Thank you, Mr. Chairman, for your time, and I appreciate
our courtesy.
[The prepared statement of Mr. Perez follows:]
Prepared Statement of Thomas E. Perez
Mr. Chairman, Ranking Member Enzi and members of the HELP
Committee, thank you for the opportunity to appear before you today. It
is a privilege to represent the Obama administration and the Department
of Justice at this hearing to consider the Employment Non-
Discrimination Act (ENDA), and to voice the Administration's strong
support for fully inclusive legislation that prohibits discrimination
on the basis of sexual orientation and gender identity.
The Civil Rights Division, which I have the great honor to lead,
serves as the conscience of the Federal Government. Our mission is
clear: to uphold and protect the civil and constitutional rights of all
Americans, particularly some of the most vulnerable among us. We seek
to advance this Nation's long struggle to embrace the principle so
eloquently captured by Dr. Martin Luther King, Jr., that persons should
be judged based on ``content of their character,'' and not on their
race, color, sex, national origin, religion or any other irrelevant
factors. Our civil rights laws--laws enforced by the Civil Rights
Division--reflect and uphold this noble principle.
Just last month Congress passed and the President made history when
he signed the first Federal law that provides civil rights protections
to lesbian, gay, bisexual and transgender (LGBT) individuals. I applaud
you for recognizing the critical need for the Matthew Shepard and James
Byrd, Jr. Hate Crimes Prevention Act, and I assure you the Department
of Justice is prepared to fulfill its new duties under that law. Its
enactment filled a critical gap in our enforcement abilities. Today, I
come before you because passage of ENDA would provide us with the tool
we need to fill another hole in our enforcement authority.
On an issue of basic equality and fundamental fairness for all
Americans, we cannot in good conscience stand by and watch
unjustifiable discrimination against lesbian, gay, bisexual and
transgender individuals occur in the workplace without redress. We have
come too far in our struggle for ``equal justice under the law'' to
remain silent or stoic when our LGBT brothers and sisters are still
being mistreated and ostracized for reasons that have absolutely
nothing to do with their skills or abilities and everything to do with
myths, stereotypes, fear of the unknown, and prejudice. No American
should be denied a job or the opportunity to earn promotions, pay
raises and other benefits of employment because of his or her sexual
orientation or gender identity, which have no bearing on work
performance. No one should be fired because he or she is gay, lesbian,
bisexual or transgender. Period. ENDA would provide much-needed and
long overdue Federal protections for LGBT individuals, who still face
widespread discrimination in workplaces across the Nation. For this
reason, the passage of ENDA is a top legislative priority for the Obama
administration.
Broadly stated, ENDA would prohibit intentional employment
discrimination on the basis of actual or perceived sexual orientation
or gender identity, by employers, employment agencies, and labor
organizations. Its coverage of intentional discrimination parallels
that available for individuals under title VII, and the principles that
underlie this coverage have been well-established for decades. Under
ENDA, we would share responsibility for its enforcement with the Equal
Employment Opportunity Commission (EEOC). Our role would be to
challenge prohibited discrimination by State and local government
employers.
The Civil Rights Division and other Federal civil rights agencies
regularly receive letters and inquiries from individuals all over the
country complaining of sexual orientation and gender identity
discrimination in employment. This ongoing discrimination and abuse
takes many forms, ranging from cruel instances of harassment and
exclusion to explicit denials of employment or career-enhancing
assignments because of the individual's sexual orientation or gender
identity. It is painfully disappointing to have to tell these working
men and women that, in the United States of America in 2009, they may
well be without redress because our Federal employment anti-
discrimination laws either exclude them or fail clearly to protect
them.
Many letters sadly describe the same kind of hostility, bigotry and
even hatred that other groups faced for much of our history, and which
Congress responded to by passing the landmark Civil Rights Act of 1964.
That act prohibited employment discrimination on the basis of race,
color, religion, sex, or national origin. At the time the bill was
debated, many of the same arguments that we hear today about ENDA--that
it would open the floodgates to litigation, it would overburden
employers and afford special rights to certain groups--were
vociferously offered by the bill's opponents. No one would seriously
contend that the parade of horribles predicted at the time ever became
reality, and the 1964 Act, which, like ENDA, was introduced over
multiple Congresses before it finally passed, has become a rock-solid
foundation for our laws ensuring equality of opportunity in the
workplace.
Throughout the decades that followed passage of the 1964 Act, we as
a nation have recognized a need to attend to unfinished business in the
fight for justice in the workplace. Accordingly, Congress has expanded
the scope of employment protections on several occasions, passing the
Age Discrimination in Employment Act of 1967, the Pregnancy
Discrimination Act of 1978, and the Americans With Disabilities Act of
1990. The Obama administration believes that ENDA must be the next
step, and that this act will be a worthy addition to its venerable
predecessors.
It is estimated that there are more than 1 million LGBT individuals
working in State and local governments and just under 7 million LGBT
individuals employed in the private sector. A large body of evidence
demonstrates that employment discrimination against LGBT individuals
remains a significant problem. The Williams Institute, a national
research center on sexual orientation and gender identity law and
public policy at the UCLA School of Law, conducted a year-long study of
employment discrimination against LGBT individuals. The study reviewed
the numerous ways in which discrimination has been documented--in
judicial opinions; in surveys of LGBT employees, State and local
government officials; and in extensive evidence presented to Congress
over the past 15 years during which ENDA has been considered. The study
concluded that discrimination based on sexual orientation and gender
identity is widespread and persistent in terms of quantity, geography
and occupations. The study focused primarily on discrimination against
LGBT employees of State and local governments, but also reviewed
broader surveys that indicate that the problem is equally widespread in
the private sector.
To combat the widespread employment discrimination against LGBT
individuals, some States have passed laws banning discrimination based
on sexual orientation and gender identity. However, 29 States still
provide no protections for lesbian, gay and bisexual individuals and 38
States provide no protection for transgender workers. State laws
therefore leave large numbers of LGBT individuals without recourse for
workplace discrimination on the basis of the sexual orientation or
gender identity.
Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act and other bedrock civil rights laws recognize that
protecting valued members of our workforce from discrimination should
not be left to a patchwork of State and local laws that leaves large
gaps in coverage. Discrimination in my home State of Maryland is just
as wrong as discrimination in Montana. As with those laws, Federal
legislation prohibiting discrimination based on sexual orientation and
gender identity will help eradicate workplace discrimination that
should be neither tolerated nor condoned.
To underscore the need for a Federal statute, I would like to
review the current scope of the law. 21 States--including Connecticut,
Nevada, New Hampshire, and Maryland--prohibit employment discrimination
based on sexual orientation. Another 12 States--including Iowa, New
Mexico, Oregon, Colorado, Minnesota, Washington, Rhode Island, and
Vermont--as well as the District of Columbia, prohibit discrimination
based on sexual orientation and gender identity. A number of local
jurisdictions contain similar protections in their local laws. For
example, in my home State of Maryland, Baltimore City and Montgomery
County have expanded the protections available under State law by
banning employment discrimination against transgendered individuals.
In States where no remedies exist, LGBT employees have no
opportunity to combat egregious workplace discrimination and
harassment. The recent report of the Williams Institute documents a
distressing number of such allegations. For example:
A police officer at the Pineville City Police Department
in West Virginia reported regular harassment by his coworkers because
of his sexual orientation, who deliberately sent him on calls without
back-up. After learning of the officer's sexual orientation, one
coworker allegedly hit him across the face with a night stick, breaking
the officer's glasses and cutting his eye. The officer believes that
his eventual discharge was based on his sexual orientation and not his
job performance.
An openly lesbian probation officer in Carroll County, IN,
was allegedly denied promotion to chief probation officer because of
her sexual orientation. A superior court judge allegedly told her that
he would not promote her because she was a lesbian, that she was
embarrassing the court by dating a woman, and that he had asked other
court employees about her sexual orientation and personal life. A man
with no prior probation experience was promoted to the position.
An employee of the Virginia Museum of Natural History, a
State agency, was allegedly forced to resign because of his sexual
orientation shortly after receiving a positive evaluation that
otherwise would have resulted in a raise. The Executive Director of the
Museum reportedly expressed concerns that the employee's sexual
orientation would jeopardize donations to the museum. A Virginia
appellate court dismissed his sexual-orientation employment
discrimination claim, holding that the governor's executive order
prohibiting such discrimination did not create a private right of
action.
These examples--which would fall within the Civil Rights Division's
enforcement authority under ENDA--are but a sampling of a disturbing
number of reports of workplace discrimination against LGBT Americans in
recent years. Unfortunately, the above LGBT employees have no
opportunity to prove their claims, because they live in States that do
not afford them redress.
The Williams Institute estimates that there are more than 200,000
LGBT employees in the Federal workforce, yet, as in the case of State
and local governments, we also lack strong statutory protection from
sexual orientation and gender identity discrimination in this arena.
The Civil Service Reform Act, which prohibits discrimination on the
basis of conduct not affecting job performance, has been interpreted by
the Office of Personnel Management to prohibit discrimination on the
basis of sexual orientation. In addition, Executive Order No. 13087
prohibits employment discrimination on the basis of sexual orientation
in much of the executive branch. But the administrative remedies
available under both of these provisions are far more limited than
those available to Federal employees who experience other forms of
discrimination, such as race, sex, or disability discrimination.
Moreover, although some courts have held that title VII's
prohibition against sex discrimination can protect LGBT persons from
certain types of discrimination under certain circumstances, the extent
of such protection varies significantly from court to court. Enactment
of legislation prohibiting discrimination against LGBT individuals in
employment is needed to meaningfully and unambiguously prohibit
employment discrimination on the basis of sexual orientation and gender
identity and to give victims of such discrimination adequate remedies.
Preventing employment discrimination on the basis of sexual
orientation and gender identity and providing the victims of such
discrimination with a means to protect their rights not only is a
matter of basic fairness, it is also a matter of enlightened economic
self-interest. As the global marketplace becomes increasingly
competitive, and as we work to revitalize and strengthen our economy,
America cannot afford to waste talent or allow workplace bias and
hostility to impede productivity, especially when many businesses
operate in multiple cities and States. There is no reason why, for
example, LGBT employees working for a company in Wisconsin, which was
the first State to prohibit discrimination against LGBT individuals,
should have their right to earn a living jeopardized or taken away if
they are transferred across the lake to Michigan, which has not yet
passed such a law.
Many of America's top businesses already recognize that
discrimination of any kind, anywhere, is bad for business and costs
money. Indeed, hundreds of companies now bar employment discrimination
on the basis of sexual orientation and/or gender identity. According to
the Human Rights Campaign's recently published Corporate Equality Index
2010, as of September 2009, 434 (87 percent) of the Fortune 500
companies had implemented non-discrimination policies that include
sexual orientation, and 207 (41 percent) had policies that include
gender identity. This, of course, is just the tip of the iceberg.
Although most of the Nation's largest businesses have started
addressing workplace fairness for LGBT employees, significant numbers
of individuals still face discrimination on the basis of sexual
orientation or gender identity and desperately need the nationwide
protections and remedies that ENDA would provide.
I have explained why legislation like ENDA is sorely needed in the
private and public sectors and why it makes good business sense. We
look forward to working with you on legislation as it advances in the
Congress and are currently reviewing the proposed legislation. We may
offer some technical comments on the bill. Now let me take a few
moments to briefly dispel some misconceptions about the scope and
impact of the legislation.
As you know, ENDA covers cases of intentional discrimination and
explicitly precludes disparate-impact claims, does not permit the use
of quotas or other forms of preferential treatment. Moreover, ENDA does
not apply to small businesses with fewer than 15 employees, tax-exempt
private membership clubs, or religious organizations. Indeed, ENDA
contains a broad exemption for religious organizations and states that
it does not apply to any corporation, association, educational
institution, or society that is exempt from the religious
discrimination provisions of title VII. In addition, nothing in ENDA
infringes on an individual's ability to practice his or her faith, to
hold and adhere to religious beliefs, or to exercise first amendment
rights of free speech on these or other issues. In addition, ENDA does
not apply to the relationship between the Federal Government and
members of the Armed Forces, and does not affect Federal, State, or
local rules providing veterans' preferences in employment decisions.
Last, there is nothing to suggest that ENDA will burden employers,
unleash a flood of complaints that would threaten to overwhelm the EEOC
or the Department of Justice, or clog the Federal courts. On the
contrary, the experience of States and local governments with sexual
orientation and gender identity discrimination statutes for decades
demonstrates that complaints under these statutes make up a relatively
small portion of total employment discrimination complaints. Moreover,
the jurisdictions that prohibit discrimination on the basis of sexual
orientation and gender identity have been able to implement and enforce
these laws in an entirely workable manner. We fully expect that the
same would hold true at the Federal level.
I will conclude by noting what a great honor it is for me to
testify about a legislative initiative of the late Senator Ted Kennedy,
who championed ENDA for more than a decade and who constantly reminded
us that civil rights are the great unfinished business of our Nation. I
can think of no better way to honor his life and work than to pass ENDA
and provide sorely needed protections from arbitrary and unjustified
discrimination to LGBT individuals in the workplace throughout our
Nation.
Thank you once again for the opportunity to testify. I welcome your
questions.
The Chairman. Thank you, Assistant Attorney General Perez.
Thank you very much for that statement, but also for your
lifetime of involvement in, and promotion of, civil rights for
all our people. You've just always been in the forefront of
that battle, and I appreciate that.
If you don't mind, I'd just say, at the outset, lucky 15,
could you give me 16?
[Laughter.]
Mr. Perez. I think we can do that. That's a----
The Chairman. Next year?
Mr. Perez [continuing]. That's a friendly amendment.
The Chairman. How about next year? OK.
Mr. Perez. Yes, very well.
The Chairman. All right. Because I just want everyone to
know, it is my intention to move this legislation. Obviously,
we've got healthcare, we've got a couple of other things we've
got to do before the end of the year. But, I'd just say to you
that we're going to move this bill next year. So, it will be
16, OK?
Mr. Perez. We will be here to provide whatever support and
assistance we can.
The Chairman. Thank you very much.
Let me just ask a couple of questions. You know, we'll hear
later about States and businesses that have taken the lead--and
we've already talked about it here--in ensuring equality for
lesbians, gays, bisexual, and transgender workers. Some argue,
therefore, no Federal legislation is needed; States are taking
care of it, and businesses are taking care of it. What's your
response to that?
Mr. Perez. Well, some States and some businesses are taking
care of it, but it shouldn't be a function of where you live
whether you have these rights. That is the challenge we have
right now. As Senator Franken correctly pointed out, almost 30
States provide no such protections. So, we strongly believe
that we should have this Federal protection so that everyone in
America can be judged by the content of their character in the
workplace.
The Chairman. Fortunately, there have been, recently,
several successful suits under title VII. So, what do you say
to those who say that title VII is enough to address the
problem and that ENDA really isn't necessary.
Mr. Perez. Well, there may be some circumstances in which
discrimination can be covered under title VII, but the
circumstances are quite limited, and the courts have reached
different conclusions in that. That is why ENDA will eliminate
that uncertainty and ensure that anybody who is discriminated
on account of sexual orientation or gender identity will have
those protections. It will eliminate that ambiguity and the
really limited protection, at best, that title VII might
potentially provide.
The Chairman. Thank you very much, Attorney General Perez.
And now I'll yield to Senator Casey.
Statement of Senator Casey
Senator Casey. Mr. Chairman, thank you very much.
I first want to say, at the outset--I apologize for being
late--I want to thank you for having this hearing. It's so
important that we have a hearing on this issue and on this
bill. I've been proud to have been a co-sponsor in both the two
Congresses I've been in--110th and 111th--and we're grateful to
Chairman Harkin for convening this hearing.
I don't have a lot of questions, but I do want to say, at
the outset, that it's appropriate that we have a hearing about
this, and we're at a point in our history where we're moving in
the direction of--not there yet, but moving in the direction
of, not just tolerance, which use to be an important word on so
many of these issues that involve Americans who happen to be
gay or lesbian, bisexual or transgender, but we're evolving
further, beyond tolerance, into an area of acceptance. Passing
this bill would be further evidence of that, that it's long
overdue.
I think the point that was made by a number of people about
why this is good for business is also an important point to
make here. We've seen that, I believe, in our history when
we've passed civil rights legislation, even in the midst of
tremendous opposition and conflict about it. We know what civil
rights legislation has done to economically empower the South.
Hard to imagine what the country would be like if we didn't
pass that legislation. So, there's a strong economic argument.
But, the fundamental argument is still, I believe, about
justice, basic justice, as we've come to understand it, in
America. So, I think it's long overdue that we pass legislation
that fundamentally requires employers in the private sector to
respect the rights and dignities of their employees, and to
provide employees with remedies in Federal courts.
I know that, in Pennsylvania, for example--a State that we
often lead on things, and sometimes we fall behind--State law
today, unfortunately, does not explicitly--in Pennsylvania--
prohibit discrimination based upon sexual orientation or gender
identity, although executive orders do protect State employees.
So, what's good enough for a State employee--I used to be one
of them--should be good enough for the rest of us.
But, I do believe that we're at a point now where the
American people understand how important this is to--in the
sense of justice, but also in the sense of what's good for our
economy.
I just wanted to ask Mr. Perez, What do you think would
be--in terms of an impediment to passage--what do you think our
biggest challenge is and I'm not just talking about the nature
of how things work in Washington--but what do you think is our
biggest challenge to overcome, in terms of substance or message
or how we convey the urgency of getting this passed?
Mr. Perez. Senator, thank you for your question.
I think the bill is going to pass, and I think it's going
to become law next year. I think one of the challenges--and
that's why this hearing is so important--is to educate people
why this is not only a good civil rights law, but this is good
for the Nation.
This is good public safety law. If you look, for instance,
at the District of Columbia Police Department, because they
have inclusive hiring policies, they have actually been able to
do a better job of policing. They have an award-winning Gay and
Lesbian Liaison Unit that has, again, won a host of awards. One
of the early years, before it was established, there were two
hate crimes reported in the District of Columbia based on
sexual orientation. Chronic underreporting because people were
afraid to come to the police to report that. As a result of the
creation of this unit, people felt more comfortable. People
felt more comfortable reporting these crimes. This bill is
about effective public safety.
Similarly, the flip side is true. When you have
discrimination in a workplace, in a law enforcement workplace,
you undermine or jeopardize public safety. There was a case we
had in West Virginia involving a gay officer, and they refused
to send backup in--to assist him in responding to calls. That
is an absolutely horrible law enforcement practice.
So, it strikes me that part of the challenge that lies
ahead is for us to educate the public that this is not simply
the right thing to do, it is absolutely in the enlightened
self-interests of large and small companies to attract the best
and the brightest, and it's in the public safety interests of
government to ensure that we have a workforce that can meet the
demands of our entire community. That's the education challenge
that lies ahead, and I think we can meet it.
Senator Casey. Thank you.
Senator Casey. We're proud to be a co-sponsor. Thank you
very much.
Mr. Perez. Thank you, Senator.
The Chairman. Thanks, Senator Casey.
Senator Merkley.
Senator Merkley. Thank you very much, Mr. Chair.
Thank you for your testimony, Mr. Perez. And
congratulations on your nomination, confirmation.
Mr. Perez. Thank you.
Senator Merkley. I think your testimony here today shows
how important it was to get you on the job.
I want to note that, as you were sharing those stories, I
was thinking of the stories of some individuals who shared
their journey at a press conference earlier today. One of them,
Mike Carney, is going to share his story in the next panel.
But, I also wanted to thank Colonel Diane Schroer, a 25-year
Special Forces veteran, for sharing her story this morning, and
Erlene Budd, who has been a tremendous advocate for transgender
rights, for sharing her story, as well.
This got me thinking about some of the folks I know in
Oregon, and their stories. One is Laura Calvo. Laura, a
transgender person who hid her transgender identity in order to
keep her job, served as a police officer for the Josephine
County Sheriff 's Department for more than 16 years. She earned
numerous commendations, including being deputy of the year in
1994. But, when a burglary of her personal items led to the
recognition of her transgender identity by her team, and her
superiors, they fired her and broke a very successful career.
And these stories go on and on.
Some say that having equal opportunity constitutes special
rights. Can you comment on that?
Mr. Perez. I call it ``fair employment practices.'' This is
not special rights, this is about a level playing field so that
somebody has an opportunity to demonstrate that they are
qualified to do the job. I would respectfully assert that
Officer Carney is exceedingly qualified to do the job, and as
he said in his written testimony, being gay does not affect job
performance, and it shouldn't affect employability, plain and
simple. This is about equal opportunity.
Senator Merkley. Thank you.
Then others say that pursuing this track might result in a
quota system. Can you address that issue?
Mr. Perez. The bill explicitly states that quotas are
forbidden. That is a quintessential red herring. We hear that
frequently in the context of these debates, and it's just dead
wrong. We can look at the experience of the States, as well, in
enforcing this. I, again, underscore the fact that this
prohibits only intentional discrimination. It doesn't prohibit
disparate impact.
Senator Merkley. You mentioned the term ``disparate
impact.'' Can you expand a little bit on that legal term? I
think it will come up in our conversations ahead.
Mr. Perez. Sure. There are two ways to establish
discrimination. One way is to demonstrate that an individual or
a company intentionally discriminated. The other is to
demonstrate that they had a facially neutral policy or practice
that had a disproportionate adverse impact on the basis of
race, color, or some other protected category.
In title VII cases that we bring, we have both theories at
our disposal. In Fair Housing cases that we bring, we have both
theories at our disposal. In voting cases that we bring, we
have both theories in our disposal. But, in this particular
case, we actually have one less theory at our disposal, because
it is only getting at intentional discrimination. So, this bill
is actually more limited than other civil rights laws that are
on the books.
Senator Merkley. And finally, 21 States have banned sexual
identity discrimination in employment. Twelve States have fully
inclusive nondiscrimination employment laws. In terms of how
these acts have been implemented and what we've seen, have
there been any, ``The sky is falling'' horror stories, as my
colleague referred to?
Mr. Perez. That hasn't been our experiences, and I look
forward to hearing from Attorney General Madigan. I confess,
Senator, when I was preparing for this, I was reading some of
the record from the debate on the 1964 Civil Rights Act. One
Senator noted that,
``This bill would discourage those who are
considering starting a new business, frustrate the
expansion of existing industry, and encourage many to
give up their businesses entirely. If the Federal
Government is to inject itself to this extent into the
operations of the Nation's industry, it may well find
itself in complete charge under a socialist State.''
Another Senator noted,
``Who is to determine whether a Negro cook is hired
instead of the white, or the white instead of the
Negro. What becomes of business management during the
incessant harassment of investigations, reports,
hearings, lawsuits? These observations barely touch
upon the practical problems of administration that will
fly from this Pandora's Box.''
Those are statements from U.S. Senators in the connection
with the Civil Rights Act of 1964. Forty-five years later,
Pandora's Box is in pretty good shape, and we haven't seen--the
sky is blue in Minnesota, and the sky is blue in Iowa, and the
sky is blue in Pennsylvania and Oregon. We hope to make the sky
blue on all 50 States by having a level playing field for
people in the workplace.
Senator Merkley. Thank you.
The Chairman. Senator Franken.
Senator Franken. Thank you, Mr. Chairman.
Mr. Perez, you just very eloquently put this in some
historical context with the 1964 Civil Rights Act. I'm struck
by the parallels of the civil rights movement of the 1960s and
the debate taking place today.
I remember, until 1967, it was illegal in a number of
States in this country for interracial couples to get married.
Now we have a President of the United States who is the product
of an interracial marriage. There just seems to be sort of a
inexorable movement in history toward civil rights.
I've also seen a real change in attitudes about gay and
LBGT people. I'd say my kids' generation--I have kids in their
20s--thinks whether someone is gay or not is about as
interesting as if they're left-handed. I think it's more
interesting than being left-handed, but----
[Laughter.]
Mr. Perez. I'm ambidextrous.
Senator Franken. Yes.
[Laughter.]
I'm not going to touch that.
[Laughter.]
But, I've seen a change in attitude--for example, in our
military. I've done USO tours for years. I remember, in 1999,
being in Kosovo and doing jokes about ``Don't ask, don't
tell,'' and I sensed a little tension from some people. Then,
in 2006, I was in Afghanistan and there was open acknowledgment
that there are gay men and women serving there, at Camp
Phoenix. They are very open about it. I remember the commander,
when he gave me this beautiful flag that I have in my office,
that's in a triangular frame built by Afghan craftsmen. He
said, ``Keep telling those `Don't ask, don't tell' jokes.'' A
group of lesbian soldiers who were sitting in one section said,
``Yeah, yeah.'' I know that these soldiers, who had been
serving in Afghanistan for a year or so, or 15 months, or were
on their third tour and had served in Iraq--at this time it was
2006 and recruiting was hard, and they were recruiting people,
giving them moral passes, like people who'd been arrested or
people who didn't do as well on cognitive tests as before. I
talked to the soldiers, and they would rather have that gay man
or woman who's been on their right and their left for the last
year than have someone who got a moral waiver.
It's changed. People's attitudes change. So, I'm just
trying to put this in an historical context. In 30 years, this
isn't going to be an issue. People will look back and go, ``Why
was this an issue?'' But, in the meantime, we've got 30 years.
So, we've got 29 States in which you can be fired for, not just
being gay or transgender, but for them suspecting that you are.
And it's legal.
Let's say you're in one State, you're in Minnesota, where,
again, the sky hasn't fallen, and you have a job with a
corporation, and they want to send you to Michigan--promote
you, because you've been doing such an excellent job--and
you're gay--and Michigan doesn't have this protection. Can you
end up in Michigan and just get fired?
Mr. Perez. Yes, sir.
Senator Franken. Thank you.
Thank you, Mr. Chairman.
The Chairman. Interesting point on it. Thank you very much,
Senator Franken.
Senator Bennet.
Statement of Senator Bennet
Senator Bennet. Thank you, Mr. Chairman. Thank you for
holding this important hearing.
I'd like to thank our Assistant Attorney General for being
here today. And congratulations on your confirmation.
Also, Mr. Chairman, I want to thank you for inviting
Professor Helen Norton, from the Colorado School of Law, who's
on the second panel and is an expert in civil rights and
employment law, and we're very proud of her and proud that
she's here.
I think Senator Franken said it very well, that what this
comes down to for me is that there is no member of this
committee today, Mr. Chairman, who would take issue with our
basic civil rights protections from racial, religious, or
gender discrimination. I think one day in the near future, I
believe the members of this committee and everybody that's here
today will understand the case of the LGBT community in exactly
the same way. This is a country that is built on fundamental
fairness, and where discrimination is something that simply
can't be tolerated.
One of the important things about civil rights laws is that
they're not just about punishing bad actors, they're about
fostering a movement toward better, fairer workplaces in the
long run. So, the question that I have comes around training of
private employers--their management teams, employees--about the
types of behavior that actually constitute discrimination. Not
everything does. Laws that are not known, won't do any good.
So, the question I have for you is just this, How can we get
the word out to employees that ENDA affords them new workplace
protection so people actually understand that the protections
are there? Does the Civil Rights Division plan to ensure that
employers and employees are aware of their rights and
responsibilities?
Mr. Perez. The short answer is ``absolutely,'' Senator. We
have a very elaborate rollout plan already underway for the
Hate Crimes bill that passed, a week ago. Literally, the day
after passage--or, the day after--the day the President signed
the bill, we sent a missive to all the U.S. attorneys offices
from the attorney general. I have since followed up. We have an
implementation team in place.
Similarly, in ENDA, we would be working side by side with
the EEOC, because the EEOC enforces ENDA, or would enforce ENDA
as it relates to private employers. We would enforce ENDA at
the Justice Department as it relates to State and local
governments. We would--and are already. I met with the acting
chair of the EEOC, literally 2 days ago, and we discussed this,
among other issues, making sure we have that implementation
team in place. Because we'd like to prevent problems from
occurring. I'd love to be the Maytag repairman, waiting,
sitting by the phone, waiting for it to ring, and having my
feet up. Where, the other way, the phone rings off the hook,
right now and we'd like to prevent that.
Senator Bennet. Right. We should all be so lucky.
I would just point out that there are a number of States,
mine is one, where we've got similar legislation on the books
already and there have been real efforts to make sure that
people understand their rights. That these rights are
communicated. I think there's an opportunity for you and for
the Department to be able to learn from some of that acquired
wisdom.
Mr. Perez. Absolutely.
Senator Bennet. That would probably be a good thing, as
well.
Mr. Perez. I couldn't agree more.
Senator Bennet. Thank you for being here. Thanks for your
leadership.
Mr. Chairman, thank you very much.
[The prepared statement of Senator Bennet follows:]
Prepared Statement of Senator Bennet
I would like to thank Assistant Attorney General Perez for
joining us this morning and congratulate him on his recent
confirmation as head of the Civil Rights Division. It's clear
to me that the Civil Rights Division could use some new
leadership and new ideas. Our committee should seek to partner
with the new Administration on civil rights issues such as the
one we have before us today.
I would particularly like to welcome Professor Helen Norton
from the Colorado School of Law, who will be participating in
the second panel this morning. Professor Norton is an expert in
civil rights and employment law, who was twice awarded
Excellence in Teaching Awards at the law school. Thank you
Professor Norton for joining us this morning. To the rest of
the panel, I look forward to your testimony as we work to
address issues related to the Employment Non-Discrimination Act
and hopefully move forward with the bill during this Congress.
America is about being judged at work based on your merit.
We have recognized in our Federal civil rights laws that
discrimination and bias have no business creeping into the
workplace. Employment decisions should be based on a person's
qualifications and work ethic.
No member of this committee today would take issue with our
basic civil rights protections from racial, religious or gender
discrimination. One day in the near future, I believe that the
members of this committee will understand the plight of the
LGBT community in the same way. It's time to close the wide
civil rights loophole that excludes them. It is critical that
we update our laws to ensure that gay, lesbian and
transgendered persons are provided the same opportunity to work
hard and get ahead without discrimination or bias.
In Colorado, we are leading on ensuring equal rights in the
workplace. Our State law and several of our city laws also
protect against discrimination based on sexual orientation or
transgen-
dered status.
It is not only in government where we are ensuring equal
rights, but also in the private sector. Several companies that
operate in the State have non-discrimination policies that are
inclusive of gays and transgendered persons. These companies
include Coors Brewing Co., which is headquartered in the State,
as well as Agilent, Anheuser-Busch, Avaya, Costco, Hewlett
Packard, Kaiser Permanente, Kodak, Lockheed, Progressive
Insurance, Safeway, Target and Wells Fargo. Nationally, 87
percent of Fortune 500 companies include sexual orientation in
their equal employment policies and 41 percent also include
gender identity.
Thank you Chairman Harkin for holding this hearing. As the
newest member of the committee and a cosponsor of ENDA, I see
this legislation as a civil rights imperative and look forward
to the testimony.
The Chairman. Thank you.
Well, General Perez, thank you very much, again, for all
your great leadership on this, and thanks for being here today,
and your testimony. Well, I hope to see you before that, but
we'll see you at the signing, next year.
Mr. Perez. Absolutely.
[Laughter.]
Thank you for your time.
The Chairman. Thanks very much.
Next, we'll call our next panel, and that'll be the
Honorable Lisa Madigan, the attorney general of the State of
Illinois. After working as a litigator, she served as a State
senator, and then, in 2002, was elected as the attorney general
and re-elected in 2006.
Mike Carney. Mike Carney is currently serving as a
detective in the Vice Control Unit for the Springfield, MA,
police department, which oversees narcotics, prostitution,
organized crime, and liquor license offenses. He's a founding
member of the Gay Officer's Action League of New England, and
has served as president of that group, and has served on the
Governor's Task Force on Hate Crimes.
We have Professor Helen Norton, an associate professor at
the University of Colorado School of Law. Prior to that, she
served as Deputy Assistant Attorney General for civil rights at
the U.S. Department of Justice, where she managed the Civil
Rights Division's Employment Litigation, Educational
Opportunities, and Coordination and Review sections.
Ms. Virginia Nguyen. Ms. Nguyen joined Nike in November
2004 and is currently a member of Nike's Diversity and
Inclusion Team.
Craig Parshall. Mr. Parshall is senior vice president and
general counsel of the National Religious Broadcasters
Association. He has practiced first amendment law and
employment law, representing clients in, among other courts,
the U.S. Supreme Court.
And Ms. Camille Olson. Ms. Olson is a partner at Seyfarth
Shaw, LLP, and a member of its National Labor and Employment
Law Steering Committee and the immediate past national
chairperson of the Labor and Employment Practice Department.
We thank you all for being here this morning. I read over
all your testimonies last evening. They're excellent. They will
be made a part of the record in their entirety.
So, if I could ask people to just sort of--maybe 5 minutes,
7 minutes, to sum it up so we, again, could have an interchange
with all of you, I would appreciate that.
I guess I'll just start from left to right. Professor
Norton, I thank you very much for being here from Colorado, and
please--again, 5, 7--I got--the clocks say 5 minutes. I don't
get nervous at 5, I get nervous at 6 or 7.
[Laughter.]
The Chairman. Welcome. Please proceed.
STATEMENT OF HELEN NORTON, ASSOCIATE PROFESSOR OF LAW,
UNIVERSITY OF COLORADO SCHOOL OF LAW, BOULDER, CO
Ms. Norton. Good morning. Thank you. Thank you for the
opportunity to join you today.
My testimony here draws not only from my work as a law
professor, teaching and writing in the areas of employment
discrimination and constitutional law, but also my experience
as a Deputy Assistant Attorney General for civil rights at the
Department of Justice, where my duties included supervising the
division's title VII enforcement efforts.
Current Federal law prohibits job discrimination on the
basis of race, sex, religion, color, national origin, age,
disability, and, very shortly, genetic information. While these
statutes provide many valuable safeguards for American workers,
Federal law, however, currently fails to protect gay, lesbian,
bisexual, and transgendered employees from discrimination on
the basis of sexual orientation or gender identity. In fact,
the case law is replete with cases in which Federal judges have
characterized egregious acts of discrimination targeted at gay,
lesbian, bisexual, and transgender workers as morally
reprehensible, yet entirely beyond the law's reach.
In the interest of time, I'll offer just a few examples,
but I'll refer you to my written statement for more.
Mr. Sydney Taylor alleged that his co-workers repeatedly
subjected him to a wide range of abusive behaviors that
included groping his genitals, simulating sexual acts,
assaulting and otherwise touching him inappropriately. Another
co-worker testified that Mr. Taylor was verbally harassed on a
weekly basis and was subjected to a work environment that the
co-worker characterized as ``abusive and intolerable.'' In
fact, the employer's own internal investigation confirmed Mr.
Taylor's reports.
Although the Federal District Court found, ``The actions of
Taylor's co-workers to be deplorable and unacceptable in
today's workforce,'' it ruled against him last year, on the
grounds that current Federal law does not prohibit harassment
based on sexual orientation or perceived sexual orientation.
``Unfortunately, Congress has not yet seen fit to provide
protection against such harassment.''
Similarly, David Martin, a gay man employed by the New York
State Department of Corrections, reported that co-workers
subjected him for years to a constant stream of offensive and
degrading sexual comments, lewd conduct, the posting of profane
graffiti and pictures, and other forms of harassment. The
Federal District Court dismissed his claims, because, ``The
torment endured by Martin, as reprehensible as it is, relates
to his sexual orientation,'' and is thus unremedied by Federal
law.
For decades, similarly, courts have dismissed the
discrimination claims of transgender workers who were horribly
harassed or denied jobs for which they were exceptionally well-
qualified, simply because of myths, fears, and stereotypes
about their transgender status. In the words of the Seventh
Circuit, as just one example, ``While we do not condone
discrimination in any form, we are constrained to hold that
title VII does not protect transsexuals.''
To be sure, some States have enacted important
antidiscrimination protections, but employers in the majority
of States remain free to fire, refuse to hire, harass, or
otherwise discriminate on the basis of sexual orientation or
gender identity. As a result, current law, both Federal and
State, leaves unremedied a wide range of injuries and
injustices. S. 1584, ENDA, would fill these gaps by clearly
articulating for the first time the national commitment to
equal employment opportunity regardless of sexual orientation
and gender identity. It does so while accommodating concerns
that it would interfere with religious institutions' ability to
make employment decisions consistent with their religious
beliefs by exempting from its coverage those religious
institutions already exempt from title VII's prohibitions on
discrimination based on religion.
Indeed, at the time of its enactment in 1964, title VII
faced similar objections from those who feared that its ban on
religious discrimination would intrude upon religious
institutions' ability to hire members of their own faith.
Congress addressed that issue by protecting the ability of
religious corporations, associations, educational institutions,
and societies to make employment decisions on the basis of
religion.
Also exempt from title VII's prohibition on religious
discrimination are educational institutions that are in whole
or in substantial part owned, supported, controlled, or managed
by a particular religion or religious institution or those
whose curriculum is directed toward the propagation of a
particular religion.
S. 1584 tracks these 45-year-old title VII provisions that
protect religious institutions' ability to make their own
employment decisions on the basis of religion. S. 1584
specifically provides that its prohibition on sexual
orientation and gender identity discrimination does not apply
to those religious institutions.
S. 1584 addresses other concerns, as well, but in the
interest of time, Mr. Chairmen, I'll reserve my discussion of
them for questions that you or your colleagues may have.
Again, I thank you for the opportunity to join you here
today.
[The prepared statement of Ms. Norton follows:]
Prepared Statement of Helen Norton
Thank you for the opportunity to join you today. My testimony here
draws from my work as a law professor teaching and writing about
employment discrimination issues, as well as my experience as a Deputy
Assistant Attorney General for Civil Rights in the Department of
Justice during the Clinton administration, where my duties included
supervising the Civil Rights Division's title VII enforcement efforts.
Current Federal law prohibits job discrimination on the basis of
race, color, sex, national origin, religion, age, and disability.\1\
While these statutes provide many valuable safeguards for American
workers, Federal law currently fails to protect gay, lesbian, bisexual,
and transgender (``GLBT'') employees from discrimination on the basis
of sexual orientation and gender identity. Indeed, the case law is
replete with cases in which Federal judges have characterized egregious
acts of discrimination targeted at GLBT workers as morally
reprehensible--yet entirely beyond the law's reach. Consider just a few
examples:
---------------------------------------------------------------------------
\1\ 42 U.S.C. Sec. Sec. 2000e-2000e-17 (Title VII of the Civil
Rights Act of 1964); 29 U.S.C. Sec. Sec. 621-634 (Age Discrimination in
Employment Act); 42 U.S.C. Sec. Sec. 12101-12102, 12111-12117, 12201-
12213 (Americans with Disabilities Act). The Genetic Information
Nondiscrimination Act, which becomes effective on November 21, 2009,
prohibits job discrimination on the basis of genetic information. Pub.
L. No. 110-233, 122 Stat. 881.
Sidney Taylor alleged that his co-workers repeatedly
subjected him to a wide range of abusive behaviors that included
groping his genitals, simulating sexual acts, assaulting him, and
otherwise touching him inappropriately.\2\ Another co-worker further
testified that Mr. Taylor was verbally harassed on a weekly basis and
subjected to a work environment that was ``abusive'' and
``intolerable,'' \3\ and the employer's own internal investigations
confirmed Mr. Taylor's reports.\4\ Although the Federal district court
found ``the actions of Taylor's co-workers to be deplorable and
unacceptable in today's workforce,'' it ruled against him last year on
the grounds that current law does not prohibit harassment based on
perceived homosexuality: ``Unfortunately, `Congress has not yet seen
fit . . . to provide protection against such harassment.' ''.\5\
---------------------------------------------------------------------------
\2\ Taylor v. H.B. Fuller Co., 2008 WL 4647690 *1-3 (S.D. Ohio
2008). The many acts of abuse alleged by Mr. Taylor also included being
``shown inappropriate or pornographic images by his co-workers'' and
witnessing co-workers ``repeatedly watching the male-on-male rape scene
from Deliverance,'' being approached by a co-worker ``holding a diaper
filled with what appeared to be blood [who] asked Taylor if it was his
or it if belonged to `some chick,' '' and having a bloody tampon placed
on his desk. Id. at 2.
\3\ Id. at *2.
\4\ Id. at *1-2.
\5\ Id. at *6-7 (quoting Bibby v. Philadelphia Coca-Cola Bottling
Co., 260 F.3d 257, 265 (3rd Cir. 2001)).
---------------------------------------------------------------------------
David Martin, a gay male employed by the New York State
Department of Corrections, reported that co-workers subjected him for
years to a constant stream of offensive and degrading sexual comments,
lewd conduct, the posting of profane graffiti and pictures, and other
forms of harassment.\6\ The Federal district court dismissed his claims
because ``the torment endured by Martin, as reprehensible as it is,
relates to his sexual orientation'' and is thus unremedied by current
law.\7\
---------------------------------------------------------------------------
\6\ Martin v. N.Y. Dep't of Correctional Servs., 224 F. Supp. 2d
434, 441 (N.D.N.Y. 2002).
\7\ Id. at 447. For an extensive discussion of widespread,
persistent, and irrational discrimination by State Government employers
based on sexual orientation and gender identity, see The Williams
Institute, Documenting Discrimination on the Basis of Sexual
Orientation and Gender Identity in State Employment (2009).
---------------------------------------------------------------------------
Michael Vickers, a private police officer employed by a
Kentucky medical center, alleged that his co-workers subjected him to
harassment on a daily basis for nearly a year after learning that he
had befriended a gay colleague.\8\ According to Mr. Vickers, they
repeatedly directed sexual slurs and other derogatory remarks at him,
placed irritants and chemicals in his food and personal property, and
engaged in physical misconduct that included a co-worker who handcuffed
Mr. Vickers and then simulated sex with him--all because of Mr.
Vickers' perceived sexual orientation.\9\ The Sixth Circuit Court of
Appeals dismissed his claim in 2006, concluding:
---------------------------------------------------------------------------
\8\ Vickers v. Fairfield Medical Center, 4 53 F.3d 757, 759 (6th
Cir. 2006), cert. denied, 127 S.Ct. 2910 (2007).
\9\ Id. at 759-60.
``While the harassment alleged by Vickers reflects conduct
that is socially unacceptable and repugnant to workplace
standards of proper treatment and civility, Vickers' claim does
not fit within the prohibitions of the law.'' \10\
---------------------------------------------------------------------------
\10\ Id. at 764-65.
Postal worker Dwayne Simonton reported that co-workers
targeted him for ongoing abuse because of his sexual orientation by
directing obscene and derogatory sexual slurs at him and by placing
pornographic and other sexually explicit materials in his worksite.\11\
The alleged harassment was so severe that Mr. Simonton ultimately
suffered a heart attack.\12\ The Second Circuit Court of Appeals
stated:
---------------------------------------------------------------------------
\11\ Simonton v. Runyon, 232 F.3d 33, 34-35 (2nd Cir. 2000).
\12\ Id. at 34.
``There can be no doubt that the conduct allegedly engaged in
by Simonton's co-workers is morally reprehensible whenever and
in whatever context it occurs, particularly in the modern
workplace.'' \13\
---------------------------------------------------------------------------
\13\ Id. at 35.
---------------------------------------------------------------------------
The court went on, however, to reject his claim, concluding that:
``[T]he law is well-settled in this circuit and in all others
to have reached the question that Simonton has no cause of
action under title VII because title VII does not prohibit
harassment or discrimination because of sexual orientation.''
\14\
---------------------------------------------------------------------------
\14\ Id.
Robert Higgins brought a title VII challenge to a
workplace environment that the First Circuit Court of Appeals
characterized as ``wretchedly hostile.'' \15\ Mr. Higgins alleged that
his co-workers targeted him for both verbal and physical harassment
because of his sexual orientation: he reported not only that they
directed threats, sexual epithets, and other obscene remarks at him,
but also that they poured hot cement on him and assaulted him by
grabbing him from behind and shaking him violently: \16\ The court
nonetheless affirmed summary judgment against Mr. Higgins:
---------------------------------------------------------------------------
\15\ Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 258
(1st Cir. 1999).
\16\ Id. at 257.
We hold no brief for harassment because of sexual
orientation; it is a noxious practice, deserving of censure and
opprobrium. But we are called upon here to construe a statute
as glossed by the Supreme Court, not to make a moral judgment--
and we regard it as settled law that, as drafted and
authoritatively construed, title VII does not proscribe
harassment simply because of sexual orientation.\17\
---------------------------------------------------------------------------
\17\ Id. at 259. For a sampling of additional cases in this vein,
see King v. Super Service, Inc., 68 Fed. Appx. 659, 664 (6th Cir. 2003)
(observing that ``[t]he individuals who harassed King were cruel and
vile, and their conduct would not be tolerated by any respectable
employer,'' but concluding that the reported physical and verbal
harassment was based on actual or perceived sexual orientation and thus
not actionable under title VII); Bibby v. Philadelphia Coca-Cola
Bottling Co., 260 F.3d 257, 265 (3rd Cir. 2001) (``Harassment on the
basis of sexual orientation has no place in our society. Congress has
not yet seen fit, however, to provide protection against such
harassment.'') (citations omitted); Silva v. Sliffard, 215 F.3d 1312
(1st Cir. 2000) (``Although we do not condone harassment on the basis
of perceived sexual orientation, it is not, without more, actionable
under title VII.''); Ulane v. Eastern Airlines, Inc., 742 F.2d 1081,
1084 (7th Cir. 1984); cert. denied, 471 U.S. 1017 (1985) (``While we do
not condone discrimination in any form, we are constrained to hold that
title VII does not protect transsexuals.''); see also Medina v. Income
Support Div., New Mexico, 413 F.3d 1131, 1135 (10th Cir. 2005) (``We
construe Ms. Medina's argument as alleging that she was discriminated
against because she is a heterosexual. Title VII's protections,
however, do not extend to harassment due to a person's sexuality.'').
To be sure, some courts have interpreted title VII's prohibitions
on sex discrimination to bar certain misconduct targeted at GLBT
workers, such as employment decisions that punish workers who are
perceived as failing to conform to certain gender stereotypes.\18\ But
even those Federal courts that have acknowledged the availability of
these theories have noted title VII's substantial limits in addressing
discrimination experienced by GLBT Americans in the workforce.\19\
---------------------------------------------------------------------------
\18\ E.g., Smith v. City of Salem, Ohio, 378 F.3d 566, 572 (6th
Cir. 2004) (holding that transgender employee sufficiently alleged
title VII cause of action for sex discrimination with his claim that he
suffered adverse employment actions based on ``his failure to conform
to sex stereotypes concerning how a man should look and behave'');
Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) (concluding
that Library of Congress's withdrawal of job offer to plaintiff once it
learned of her transgender status constituted sex stereotyping and sex
discrimination in violation of title VII).
\19\ See, e.g., Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2nd
Cir. 2005) (rejecting lesbian plaintiff 's claim of title VII
discrimination: ``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.'' ') (quoting Simonton v.
Runyon, 232 F.3d 33, 38 (2nd Cir. 2000); Schroer v. Billington, 525 F.
Supp. 2d 58, 63 (D.D.C. 2007) (stating that a title VII sex
stereotyping claim ``could not be supported by facts showing that [an
adverse employment action] resulted solely from [the plaintiff 's]
disclosure of her gender dysphoria'').
---------------------------------------------------------------------------
To fill these significant gaps, some States have enacted important
antidiscrimination protections for GLBT workers: indeed, 12 States and
the District of Columbia have enacted statutes that bar job
discrimination on the basis of sexual orientation as well as gender
identity,\20\ while another 9 States prohibit job discrimination on the
basis of sexual orientation alone.\21\ But employers in the majority of
States remain free to fire, refuse to hire, harass, or otherwise
discriminate against individuals because of their sexual orientation
and/or gender identity. (Moreover, even in the most egregious cases,
State tort remedies such as assault and battery are of little, if any,
practical value to victims: not only do courts generally decline to
find employers vicariously liable for such torts as beyond the scope of
employment, the individual assailants themselves are often judgment-
proof. Indeed, none of the decisions discussed above included any
disposition of a tort claim in the plaintiff 's favor.)
---------------------------------------------------------------------------
\20\ Along with the District of Columbia, those States are:
California, Colorado, Illinois, Iowa, Maine, Minnesota, New Jersey, New
Mexico, Oregon, Rhode Island, Vermont, and Washington.
\21\ Those States are Connecticut, Delaware, Hawaii, Maryland,
Massachusetts, Nevada, New Hampshire, New York, and Wisconsin.
---------------------------------------------------------------------------
As a result, current law--both Federal and State--leaves unremedied
a wide range of injuries and injustices suffered by GLBT workers. S.
1584 would fill these gaps by clearly articulating, for the first time,
a national commitment to equal employment opportunity regardless of
sexual orientation and gender identity. More specifically, it forbids
such discrimination in decisions about hiring, firing, compensation,
and other terms and conditions of employment.\22\ S. 1584 also
incorporates the remedies and enforcement mechanisms available under
title VII.\23\
---------------------------------------------------------------------------
\22\ S. 1584 at Sec. 4.
\23\ Id. at Sec. 10.
---------------------------------------------------------------------------
S. 1584 thus accomplishes antidiscrimination law's twin purposes of
compensating victims of discrimination for their injuries and deterring
future acts of bias. It does so while accommodating concerns that it
would interfere with religious institutions' ability to make employment
decisions consistent with their religious beliefs. More specifically,
S. 1584 completely exempts from its coverage those religious
institutions already exempt from title VII's prohibition on
discrimination based on religion.\24\
---------------------------------------------------------------------------
\24\ Id. at Sec. 6 (``This Act shall not apply to a corporation,
association, educational institution or institution of learning, or
society that is exempt from the religious discrimination provisions of
title VII of the Civil Rights Act of 1964 pursuant to section 702(a) or
703(e)(2) of such Act (42 U.S.C. 2000e-1(a); 2000e- 2(e)(2)).'').
---------------------------------------------------------------------------
At the time of its debate in 1964, title VII faced similar
objections from those who feared that its ban on religious
discrimination would intrude upon religious institutions' ability to
hire members of their own faith. Congress addressed this issue by
protecting the ability of ``a religious corporation, association,
educational institution, or society'' to make employment decisions on
the basis of religion.\25\ Over the last 45 years, courts have
interpreted this provision to exempt not only houses of worship,
parochial schools, and religious missions, but also other organizations
found to be primarily religious in purpose and character.\26\
---------------------------------------------------------------------------
\25\ 42 U.S.C. Sec. 2000e-1(a).
\26\ See, e.g., Corp. of the Presiding Bishop of the Church of
Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987)
(applying exemption to nonprofit gymnasium operated by the LDS Church);
Leboon v. Lancaster Jewish Community Center Ass'n, 503 F.3d 217, 226
(3rd Cir. 2007), cert. denied 128 S.Ct. 2053 (2008) (holding that a
Jewish Community Center was exempt from title VII's religious
discrimination provisions because its purpose and character were
primarily religious); Hall v. Baptist Memorial Health Care Corp., 215
F.3d 618 (6th Cir. 2000) (applying exemption to college of health
sciences directly related to the Baptist church); Killinger v. Samford
University, 113 F.3d 196 (11th Cir. 1997) (applying exemption to
university because of its close relationship with the State Baptist
Convention); Little v. Wuerl, 929 F.2d 944 (3rd Cir. 1991) (applying
exemption to Catholic parish school); Spencer v. World Vision, Inc.,
570 F. Supp. 2d 1279 (W.D. Wash. 2008) (holding a nonprofit Christian
humanitarian aid organization to be an exempt religious institution);
Saeemodarae v. Mercy Health Services, 456 F. Supp. 2d 1021 (N.D. Iowa
2006) (applying exemption to hospital affiliated with Catholic church);
Lown v. Salvation Army, 393 F. Supp. 2d 223 (S.D.N.Y. 2005) (applying
exemption to Salvation Army); Wirth v. College of the Ozarks, 26 F.
Supp. 2d 1185 (W.D. Mo. 1998) (applying exemption to college affiliated
with Presbyterian church); Feldstein v. Christian Science Monitor, 555
F. Supp. 974 (D. Mass. 1983) (applying exemption to Christian Science
Monitor). On the other hand, courts have held that the exemption does
not apply to organizations that are primarily secular in purpose and
character. See, e.g., EEOC v. Townley Engineering & Mfg. Co., 859 F.2d
610, 618 (9th Cir. 1988), cert. denied, 489 U.S. 1077 (1989) (holding
that a for-profit manufacturer of mining equipment owned by religious
individuals who operated the company pursuant to their religious
principles was not an exempt religious institution because its nature
was primarily secular).
---------------------------------------------------------------------------
As originally enacted in 1964, this provision exempted only
employment decisions concerning jobs related to such organizations'
``religious'' activities.\27\ In 1972, however, Congress broadened the
exemption to its current scope by exempting such organizations from
title VII's ban on religious discrimination with respect to employment
decisions about jobs related to any of their activities, non-religious
as well as religious.\28\ Also exempt from title VII's prohibition on
religious discrimination are schools, colleges, universities, or other
educational institutions or institutions of learning that are ``in
whole or in substantial part, owned, supported, controlled, or managed,
by a particular religion or by a particular religious corporation,
association, or society, or if the curriculum of such school, college,
university, or other educational institution or institution of learning
is directed toward the propagation of a particular religion.'' \29\
---------------------------------------------------------------------------
\27\ Civil Rights Act of 1964, Pub. L. No. 88-352, title VII,
Section 702, 78 Stat. 241, 255.
\28\ Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261,
Section 702, 86 Stat. 103, 104 (now codified at 42 U.S.C. Sec. 2000e-
1(a)). Such religious institutions are not, however, generally exempt
from title VII's prohibitions on discrimination on the basis of race,
color, sex, or national origin. See Id. In recognition of the
significant constitutional and other interests at stake, however,
courts have long interpreted the first amendment to preclude the
application of title VII and other employment laws to religious
institutions' decisions about their spiritual leaders. See, e.g.,
Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698 (7th Cir.
2003) (declining to consider plaintiff 's title VII race and national
origin claims by holding that title VII does not apply to religious
institutions' employment decisions about ministers and other spiritual
leaders); EEOC v. Catholic University of America, 83 F.3d 455 (D.C.
Cir. 1996) (rejecting plaintiff 's claim of sex discrimination by
holding that the ministerial exception exempts decisions involving
teachers of religious canon law from title VII); Scharon v. St. Luke's
Episcopal Presbyterian Hospital, 929 F.2d 360 (8th Cir. 1991)
(precluding chaplain's discrimination claims under the ministerial
exception); Rayburn v. General Conference of Seventh-Day Adventists,
772 F.2d 1164 (4th Cir. 1985) (holding that ministerial exception
exempts employment decisions about pastoral advisors from title VII
scrutiny); McClure v. Salvation Army, 460 F.2d 553 (5th Cir.), cert.
denied, 409 U.S. 896 (1972) (rejecting minister's claim of sex
discrimination by holding that title VII does not apply to religious
institutions' employment decisions regarding ministers and similar
spiritual leaders).
\29\ 42 U.S.C. Sec. 2000e-2(e)(2). This provision was added in 1964
through an amendment offered by Representative Purcell, who expressed
concern that some church-affiliated educational institutions would not
be exempt under 42 U.S.C. Sec. 2000e-1(a): ``Almost without exception,
the term `religious corporation' would not include church-affiliated
schools unless this definition should receive the most liberal possible
interpretation by the courts. Actually most church-related schools are
chartered under the general corporation statutes as nonprofit
institutions for the purpose of education.'' 110 Cong. Rec. 2585-2593
(1964). Nevertheless, there remains a significant amount of overlap
between these two exemptions. See, e.g., Hall v. Baptist Memorial
Health Care Corp., 215 F.3d 618 (6th Cir. 2000) (concluding that
college of health sciences was exempt from title VII's prohibition on
religious discrimination under both 42 U.S.C. Sec. 2000e-1(a) and 42
U.S.C. Sec. 2000e-2(e)(2) because of its direct relationship to the
Baptist church); Killinger v. Samford University, 113 F.3d 196 (11th
Cir. 1997) (concluding that Samford University satisfied both of title
VII's religious exemptions because of its close relationship with the
State Baptist Convention); Little v. Wuerl, 929 F.2d 944 (3rd Cir.
1991) (concluding that Catholic parish school satisfied both
exemptions).
---------------------------------------------------------------------------
S. 1584 incorporates the longstanding statutory definitions of
religious institutions exempt from title VII's ban on religious
discrimination and specifically exempts those same institutions from
its prohibition on sexual orientation and gender identity
discrimination:
``This Act shall not apply to a corporation, association,
educational institution or institution of learning, or society
that is exempt from the religious discrimination provisions of
title VII of the Civil Rights Act of 1964 pursuant to section
702(a) or 703(e)(2) of such Act (42 U.S.C. 2000e-1(a); 2000e-
2(e)(2)).'' \30\
---------------------------------------------------------------------------
\30\ S. 1584 at Sec. 6.
S. 1584 addresses other concerns as well. For example, it provides
no disparate impact cause of action,\31\ and it prohibits employers
from granting preferential treatment to an individual because of the
individual's actual or perceived sexual orientation or gender
identity.\32\ It does not prohibit an employer from enforcing rules or
policies that do not intentionally circumvent the act's purposes,\33\
nor does it require the collection of statistics on actual or perceived
sexual orientation or gender identity.\34\ S.1584 does not apply to the
armed services.\35\ Finally, it does not require an employer to treat
an unmarried couple in the same manner as a married couple for employee
benefits purposes,\36\ with the definition of the term ``married''
drawn from that in the Defense of Marriage Act.\37\
---------------------------------------------------------------------------
\31\ S. 1584 at Sec. 4(g).
\32\ Id. at Sec. 4(f)(1).
\33\ Id. at Sec. 8(a)(1)
\34\ Id. at Sec. 9.
\35\ Id. at Sec. 7.
\36\ Id. at Sec. 8(b)
\37\ Id. at Sec. 8(c).
---------------------------------------------------------------------------
In sum, S. 1584 proposes to fill significant gaps in existing law
by clearly articulating, for the first time, a national commitment to
equal employment opportunity regardless of sexual orientation and
gender identity while addressing concerns raised by religious
institutions and other employers. Again, thank you for the opportunity
to testify here today, and I look forward to your questions.
The Chairman. Again, we're honored by the presence of the
attorney general of Illinois, Attorney General Madigan.
STATEMENT OF HON. LISA MADIGAN, ATTORNEY GENERAL, STATE OF
ILLINOIS, CHICAGO, IL
Ms. Madigan. Thank you, Mr. Chairman and members of the
committee, for inviting me to testify today in support of this
important Federal civil rights legislation to prohibit
discrimination on the basis of sexual orientation and gender
identity.
As the chief legal officer for the State of Illinois, I am
pleased to share Illinois' experience in expanding the
protections of our Human Rights Act to cover members of the
lesbian, gay, bisexual, and transgender community.
Illinois is one of 21 States in the country with an
antidiscrimination statute that includes sexual orientation as
a protected class, and we are one of the 12 States that
includes gender identity. Since the implementation of these
protections in January 2006, we have seen a positive reaction
in both the public and private sectors, with a move toward
tolerance, acceptance, and inclusion of all individuals. At the
same time, as I will testify, Illinois has not seen a flood of
complaints. On the contrary, we have seen a reasonable number
of charges being filed.
The Illinois Human Rights Act originally passed in 1980. It
protects individuals from discrimination not only in
employment, but also in real estate transactions, access to
financial credit, and access to public accommodations. The law
protects individuals from discrimination on several bases,
including age, disability, race, sex, and religion.
In 2005, the Illinois legislature amended the Human Rights
Act to include sexual orientation. Illinois' definition of
sexual orientation includes both actual and perceived sexual
orientation, as well as gender-related identity. These
definitions are similar to the definitions under the proposed
Employment Non-Discrimination Act.
The amendments to our Human Rights Act have been in effect
for 3\1/2\ years. Some had predicted that the addition of
sexual orientation and gender identity to the Human Rights Act
would lead to an avalanche of discrimination complaints and a
significant increase in litigation. But, that has not been the
experience in Illinois.
The Illinois Department of Human Rights is our State
administrative agency with the primary responsibility for
investigating and initiating discrimination charges. Since the
Human Rights Act was amended, only between 2.06 percent and
3.79 percent of all charges filed annually with the Department
have involved allegations of sexual orientation discrimination.
Specifically, of the 13,723 employment discrimination charges
filed since 2006, only 399, or 2.9 percent, were based on
sexual orientation. As these numbers clearly demonstrate, we
have not seen a flood of discrimination charges.
Perhaps the reason for that is because the law was passed
with considerable support from our business community. There
were 115 major Illinois employers, as well as the Chicagoland
Chamber of Commerce, that publicly supported these amendments.
And in part, I presume that is--not only was it an enlightened
business decision, but prior to the passage of our State law,
there were already 16 different municipalities and local
governments throughout Illinois that had enacted
antidiscrimination ordinances that included sexual orientation.
Prior to the passage of the State law, there was a patchwork of
protections throughout the State, and with the changes to our
Human Rights Act, we now have a statewide standard. Illinois
employers now work under the same rules.
Employers have also reacted positively to the new law, in
that 208 of the employers that are headquartered in Illinois
now have sexual orientation included in their internal
nondiscrimination policies and programs; 67 of those, we are
aware of, have also included gender identity. These policies
lead to more productive, more inclusive, more tolerant, and
more safe workplaces for all employees. Studies have shown--and
I presume we will hear about Nike's experience--that employers
that institute inclusive antidiscrimination policies and
programs are less likely to experience discrimination lawsuits,
and therefore, spend less money on legal fees.
But, the most important impact of prohibiting
discrimination against LGBT persons is the impact on individual
lives. Statistics are helpful, but ultimately we must focus on
the protections that we provide to real people. We obviously
all know that discrimination on the basis of sexual orientation
and gender identity occurs. We have already heard numerous
stories this morning. I want to address one more thing.
Lesbian, gay, bisexual, and transgender employees are not
seeking special rights or privileges. Instead, they want to be
able to come to work and to be judged on the quality of their
work, not on who they are or on who they are perceived to be.
Through the enactment of a statewide statute prohibiting
discrimination based on sexual orientation and gender identity,
Illinois has promoted tolerance, fundamental equality, and the
common humanity of all individuals in our State. The benefits
of such a message to the citizens of our State cannot be
underestimated.
I believe that the experience in Illinois speaks strongly
in favor of Federal action to protect citizens across our
country from unfair workplace discrimination based on sexual
orientation and gender identity.
Thank you for the opportunity to testify today. I'd be
happy to answer the committee's questions.
[The prepared statement of Ms. Madigan follows:]
Prepared Statement of Lisa Madigan
I. INTRODUCTION
Senator Harkin and members of the committee, thank you for inviting
me to testify at today's hearing on the proposed Employment Non-
Discrimination Act. As the chief legal officer for a State that has
been a leader in protecting the civil rights of all of its citizens, I
am pleased to share Illinois' experience in expanding the protections
of the Illinois Human Rights Act to cover sexual orientation and gender
identity.
Illinois is one of 21 States in the country with an anti-
discrimination statute that includes sexual orientation as a protected
class, and 1 of 13 States that includes gender identity. Since the
implementation of these protections in January 2006, Illinois has seen
a reasonable number of charges being filed, with a recent increase in
the last year. At the same time, we have seen a positive reaction in
the public and private sector with a move toward tolerance, acceptance
and inclusion of all individuals.
My testimony today is divided into two parts. First, I will review
the Illinois Human Rights Act, with specific emphasis on the definition
of sexual orientation and gender identity. In the second part, I will
discuss Illinois' experience since the implementation of the amendments
to the Human Rights Act in January 2006, including a discussion of the
number and types of complaints filed regarding sexual orientation and
gender identity.
II. THE ILLINOIS HUMAN RIGHTS ACT
The Illinois Human Rights Act, 775 ILCS 5/1-101 et seq. (``IHRA''),
was originally passed and implemented in 1980. IHRA protects an
individual from discrimination based upon race, color, citizenship
status, national origin, ancestry, age, handicap, marital status,
gender, religion, military service, or unfavorable military discharge
status, as well as sexual harassment and retaliation, in connection
with four areas: employment, real estate transactions, access to
financial credit, and the availability of public accommodations. 775
ILCS 5/1-102(A). In 2005, IHRA was amended to include sexual
orientation as a protected class. 775 ILCS 5/1-102(A). These amendments
became effective January 1, 2006 (``the 2006 Amendments'').
IHRA defines ``sexual orientation'' as: actual or perceived
heterosexuality, homosexuality, bisexuality, or gender-related
identity, whether or not traditionally associated with the person's
designated sex at birth. 775 ILCS 5/1-102(0-1).
IHRA covers not only cases where a complainant is discriminated
against because of his or her actual sexual orientation, but also those
cases where a complainant is discriminated against because someone
assumes his or her sexual orientation based upon the complainant's
behavior, dress, or associations. The definitions of ``sexual
orientation'' and ``gender identity'' in the proposed Employment Non-
Discrimination Act are similar to the definitions under IHRA. See, S.
1584, Section 3(a)(6, 9).
IHRA applies to employers with 15 or more employees within
Illinois. 775 ILCS 5/2-101(B)(1)(a). The State, as well as any
political subdivision, municipal corporation or other governmental unit
or agency, without regard to the number of employees, are also covered.
775 ILCS 5/2-101(B)(1)(c).
Relief available to a complainant under IHRA is similar to relief
available under Title VII of the Federal Civil Rights Act of 1964:
actual damages; back pay; front pay; lost benefits; emotional damages;
injunctive relief including reinstatement; and attorneys' fees and
costs. 775 ILCS 5/8A-104(A-J). However, unlike title VII, punitive
damages are not available under IHRA.
When a complainant believes he or she has been discriminated
against because of his or her sexual orientation, the complainant may
file charges with the Illinois Department of Human Rights (``IDHR'').
775 ILCS 5/7A-102(A). IDHR forwards a copy of the charge to the
respondent and the parties may enter into a voluntary mediation. 775
ILCS 5/7A-102(B, B-1). If the mediation does not resolve the matter, or
the parties choose not to mediate at that time, the respondent must
answer the charges and IDHR begins an investigation. 775 ILCS 5/7A-
102(C). Once IDHR completes the investigation, the Department issues an
investigation report. 775 ILCS 5/7A-102(D). If after a review of the
investigation report, the Director of IDHR determines that there is
substantial evidence of discrimination, the complainant may request
that IDHR file a complaint with the Illinois Human Rights Commission
(``Commission'') on his or her behalf, or he or she may file a civil
action in the State circuit court. 775 ILCS 5/7A-102(D)(4). If the
Director determines that there is no substantial evidence of
discrimination, the charges are dismissed and the complainant may
appeal the finding by filing a Request for Review with the Commission,
or filing an action in the State circuit court. 775 ILCS 5/7A-
102(D)(3).
III. ILLINOIS' EXPERIENCE UNDER THE 2006 AMENDMENTS TO THE ILLINOIS
HUMAN RIGHTS ACT
A. Charges Filed With the Illinois Department of Human Rights
Prior to the enactment of the 2006 Amendments to IHRA, which added
sexual orientation and gender identity, IDHR anticipated that after the
2006 Amendments went into effect, roughly 10 percent of all charges
filed with the Department would involve sexual orientation
discrimination. After 3\1/2\ years under the 2006 Amendments, the
percentage of sexual orientation cases has been less than originally
anticipated: since fiscal year 2006, between 2.06 and 3.79 percent of
all charges filed with IDHR have alleged sexual orientation
discrimination.\1\
---------------------------------------------------------------------------
\1\ See Exhibit A, Analysis of Sexual Orientation (including Gender
Identity) Charges filed with the Illinois Department of Human Rights,
fiscal year 2006-10.
---------------------------------------------------------------------------
With regard to employment discrimination charges, while charges
based upon sexual orientation have increased over time, they still make
up a relatively small percentage of the total charges. For example, in
fiscal year 2006, only 34 employment discrimination charges based on
sexual orientation were filed with IDHR, which was only 2 percent of
all employment discrimination charges filed that fiscal year.\2\ In
fiscal year 2009, 147 employment discrimination charges based on sexual
orientation were filed with IDHR, totaling only 4 percent of all
employment discrimination charges filed that fiscal year. IDHR
attributes the increase in sexual orientation employment discrimination
charges to the downturn in the economy, as well as to educational
outreach by IDHR regarding the law to the lesbian and gay community,
other agencies, and employers throughout the State.
---------------------------------------------------------------------------
\2\ The data for fiscal year 2006 reflect only the last 6 months of
the fiscal year, since the amendments to IHRA did not go into effect
until January 1, 2006. The fiscal year in Illinois is July 1--June 30.
---------------------------------------------------------------------------
Discrimination charges based on sexual orientation have a similar
settlement rate as discrimination charges based on other protective
classes. Approximately one-third of all discrimination charges based on
sexual orientation filed with IDHR are settled, which is comparable to
the settlement rate for other charges.
Since 2006, there have been 140 charges filed against public
entities based upon sexual orientation discrimination under IHRA. Those
140 charges include not only employment discrimination claims, but
claims based upon real estate transactions, access to financial credit,
and the availability of public accommodations. During that same time
period, 273 charges were filed against private entities, six charges
were filed against unions, and 35 were filed against other entities.
B. Results of the 2006 Amendments to the Illinois Human Rights Act
While there has not been an overwhelming number of discrimination
charges based upon sexual orientation filed since IHRA was amended in
2006, that does not mean that the amendments were not necessary or that
the law has not been effective. There have been several benefits to the
citizens of Illinois because of this improvement to the law, while at
the same time businesses have become more inclusive and the rights of
religious institutions have been protected.
1. Effect Upon the Business Sector in Illinois
The 2006 Amendments to IHRA created a statewide standard for
employers and businesses throughout Illinois. Prior to the 2006
Amendments, 16 different municipalities and local governments, ranging
from large urban centers and suburban areas to down-state communities,
had local ordinances that prohibited discrimination based upon sexual
orientation.\3\ This created a patchwork of protections throughout the
State, which led to inconsistent policies for employers who conducted
business in multiple parts of the State. With a statewide act, all
employers are now working under the same rules and standards.
---------------------------------------------------------------------------
\3\ The Illinois municipalities with anti-discrimination ordinances
that include sexual orientation as a protected class are Bloomington,
Carbondale, Chicago, Champaign, Decatur, DeKalb, Evanston, LaGrange,
Moline, Naperville, Normal, Oak Park, Peoria, Springfield and Urbana.
The County of Cook, where Chicago is located, also as an anti-
discrimination ordinance that includes sexual orientation as a
protected class.
---------------------------------------------------------------------------
Since the implementation of the 2006 Amendments, there has not been
evidence of a backlash by employers. In fact, the business community
showed significant support for the passage of the 2006 Amendments. Over
115 major employers in Illinois publicly supported the 2006 amendments,
and business associations, such as the Chicagoland Chamber of Commerce,
supported the amendments, as well.
The 2006 Amendments also have not led to frivolous lawsuits. Of the
13,723 employment discrimination charges filed with IDHR since 2006,
only 399, or 2.9 percent, were based upon sexual orientation. Studies
have also shown that companies that have instituted inclusive anti-
discrimination policies and programs are less likely to experience
discrimination lawsuits and have spent less on legal fees since the
implementation of those policies.\4\
---------------------------------------------------------------------------
\4\ Wentlin, R.M., Palm-Rivas, N., ``Current status and future
trends in diversity initiatives in the workplace: Diversity experts'
perspective,'' Diversity in the Workplace Series, Report No. 2; MDS-
1082, Berkeley: National Center for Research in Vocational Education,
University of California (1997).
---------------------------------------------------------------------------
Publicity on the 2006 Amendments has led employers and businesses
to revise their non-discrimination policies as well as their internal
trainings. This publicity has led to increased awareness as well as
prevention. Since the implementation of the 2006 Amendments to IHRA,
208 employers who are headquartered in Illinois have added sexual
orientation to their internal anti-discrimination policies, and 67 of
these companies have added gender identity to those internal policies,
as well.\5\ These changes in policies reflect changes in employee
attitudes toward lesbian and gay co-workers and colleagues. A national
survey by Harris Interactive, Inc. in 2008 shows that 79 percent of
heterosexual employees agree that how an employee does his or her job
should be the standard for judging an employee, not his or her sexual
orientation.\6\
---------------------------------------------------------------------------
\5\ Human Rights Campaign Foundation, www.hrg.org/employersearch.
\6\ ``Out & Equal Workplace Culture Report, Survey of Workplace
Attitudes, 2002-2008,'' Harris Interactive, Inc. on behalf of Out &
Equal Workplace Advocates (2008).
---------------------------------------------------------------------------
2. Effect Upon Religious Institutions in Illinois
The 2006 Amendments to IHRA do not supersede a religious
institution's First Amendment right to hire and fire according to the
tenets of its religion. Federal courts have held that religious
institutions are exempt from all liability under title VII, regardless
of the basis of the alleged discrimination, if the job position
involved in the employment discrimination claim was a ministerial
position. See, e.g., Alicea-Hernandez v. The Catholic Bishop of
Chicago, 320 F.3d 698 (7t Cir. 2003) (Employee could not bring a claim
of discrimination based on gender and national origin because her
position of communications manager was ministerial in nature); and
E.E.O.C. v. The Roman Catholic Diocese of Raleigh, NC, 213 F.3d 795
(4th Cir. 2000) (Employee could not bring a claim of discrimination
based on gender and retaliation because her position of music director
was ministerial in nature). The Illinois Human Rights Commission has
made similar holdings under IHRA. See, e.g., Hopkins and Urbana
Assembly of God, 39 Ill.HRC Rep. 394 (March 30, 1988); McBride and
Trinity Lutheran Church, Charge No. 1992SF0074 (1997 WL
683117)(September 17, 1997). The 2006 Amendments to IHRA have not
superseded this precedent.
Charges filed with IDHR also show that religious institutions have
not been impacted by the 2006 Amendments to IHRA. Since the effective
date of the 2006 Amendments, only a handful of charges based on sexual
orientation have been filed against religious institutions. In fiscal
year 2009 and so far in fiscal year 2010, not a single charge based
upon sexual orientation was filed against a religious institution.
Most importantly, a significant number of religious institutions
were in support of the 2006 Amendments to IHDA. At the time of the
passage of the 2006 Amendments, approximately 87 religious
institutions, organizations and leaders pledged their public support
for the amendments.\7\
---------------------------------------------------------------------------
\7\ See Exhibit B, Religious organizations, institutions and
leaders who publicly supported the 2006 Amendments to IHRA.
---------------------------------------------------------------------------
3. Success Stories Under the 2006 Amendments to the Illinois Human
Rights Act
While the Illinois experience has been that the number of charges
of employment discrimination based upon sexual orientation has been
relatively small, the 2006 Amendments to IHRA have had a positive
effect on individual lives. The statistics are helpful, but it is the
stories of real people who have been helped by the 2006 Amendments that
demonstrate the importance of these protections.
The first example I would like to share with you is the case of a
woman I will call Ellen. Ellen is an African-American lesbian who was
employed as a maintenance worker at a large retailer. One of Ellen's
co-workers learned that Ellen was a lesbian and had a girlfriend. He
began to call Ellen derogatory names on an almost daily basis,
sometimes spitting the words in her face. Then the harassment began to
spread. Managers and coworkers asked her graphic sexual questions and
flashed at her pornographic pictures almost every other day on the job.
On several occasions when Ellen was cleaning the men's restroom, male
co-workers purposely entered the restroom, exposed their genitals to
her, and made threatening sexual comments to her. When Ellen reported
this harassment to her supervisor, management, and eventually the
corporate office, it was ignored. Ellen filed charges against her
employer through IDHR. Ellen's goal is to return to her job free of
harassment and continue as a productive employee.
The second example is the case of a woman I will call Sherry.
Sherry was the Chief Naturalist of a suburban nature center in
Illinois. Sherry worked for the nature center for over 16 years,
creating programs for children and families, running volunteer
programs, and she thoroughly loved her profession. Sherry had never had
a negative job performance review. But then a co-worker saw Sherry at a
restaurant where Sherry was attending a support group for transgendered
individuals. When the new Executive Director of the nature center
learned that Sherry was going to transition from a man to a woman, the
Executive Director demoted Sherry, and eventually terminated her
employment. Sherry filed a charge against the Executive Director and
the nature center through IDHR. While Sherry did not gain her position
back, the case was resolved and Sherry was able to continue with her
life. Without the 2006 Amendments to IHRA, Sherry would have had no
recourse at all.
The real-life cases of Ellen and Sherry demonstrate why the
inclusion of sexual orientation and gender identity in employment anti-
discrimination laws is so important. Neither Ellen nor Sherry wants
special rights or privileges. Instead, they want to be able to come to
work, have the opportunity to work free of harassment, and be judged on
the quality of their performance, not on their sexual orientation,
gender identity or the perception of their sexual orientation or gender
identity.
IV. CONCLUSION
Since the enactment of the 2006 Amendments to the Illinois Human
Rights Act, which added sexual orientation, including gender identity,
as a protected class, the State has provided individuals who face
unfair workplace discrimination with a useful and necessary tool. The
State has not been overwhelmed with the number of charges based upon
sexual orientation filed with the Illinois Department of Human Rights.
We have also not seen a backlash from the business community, nor harm
to the religious institutions in the State. Instead, Illinois has seen
an increase in the number of employers with inclusive anti-
discrimination policies. But just as important, the existence of a
statewide statute prohibiting discrimination based upon sexual
orientation promotes tolerance, fundamental equality and common
humanity of all individuals in our State. The benefits of such a
message to the citizens of our State cannot be underestimated.
I would like to recognize that here with me today is the Director
of the Illinois Department of Human Rights, Rocco Claps. Mr. Claps and
the Department were extremely helpful in providing the data cited in my
testimony today.
Thank you for the opportunity to testify before the committee
today.
Exhibit A.--State of Illinois, Department of Human Rights
Analysis of Sexual Orientation (Including Gender Identity) Charges
----------------------------------------------------------------------------------------------------------------
2006* 2007 2008 2009 2010**
----------------------------------------------------------------------------------------------------------------
Type of Sexual Orientation Discrimination:
Employment....................................................... 34 103 81 147 34
Housing.......................................................... 2 5 5 5 2
Public Accommodations............................................ 6 2 4 18 6
Financial Credit................................................. 0 0 0 0 0
Sexual Harassment In Higher Education............................ 0 0 0 0 0
--------------------------------------------
Total Sexual Orientation Charges............................... 42 110 90 170 42
Total Charges Filed:
Total Employment Charges Filed................................... 1,788 3,287 3,522 4,007 1,119
Total Housing Charges Filed...................................... 216 397 309 355 124
Total Public Accommodations Charges Filed 49 90 116 127 32
Total Financial Credit Charges Filed 0 5 2 0 0
Total Sexual Harassment in Higher Education 2 3 0 2 4
--------------------------------------------
Total.......................................................... 2,055 3,782 3,949 4,491 1,279
Percent to Total Charges Filed by Type:
Employment....................................................... 2% 3% 2% 4% 3%
Housing.......................................................... 1% 1% 2% 1% 2%
Public Accommodations............................................ 12% 2% 3% 14% 19%
Financial Credit................................................. 0% 0% 0% 0% 0%
Sexual Harassment in Higher Education............................ 0% 0% 0% 0% 0%
--------------------------------------------
Percentage of Sexual Orientation Charges to Total.............. 2.04% 2.91% 2.28% 3.79% NA\3\
Resolution of Sexual Orientation Charges:
Settled.......................................................... 10 38 34 34 2
Withdrawal....................................................... 0 10 5 10 0
Substantial Evidence............................................. 10 10 10 4 0
Lack of Substantial Evidence..................................... 12 26 26 7 0
Lack of Jurisdiction............................................. 1 1 3 2 0
Failed to Participate............................................ 2 8 8 6 0
Other............................................................ 7 17 4 107 40
Charges Docketed by Sexual Orientation Category:
Bisexual......................................................... 2 3 3 3 2
Gender Identity.................................................. 0 3 3 15 1
Homosexual (Gay, Lesbian)........................................ 27 58 48 132 29
Heterosexual..................................................... 0 10 10 8 3
Transgender...................................................... 7 26 16 4 2
Perceived Sexual Orientation..................................... 6 10 10 8 5
Sexual Orientation Charges (Including Gender Identity) by Type of
Respondent:
Public Entity.................................................... 8 22 80 20 6
State Government................................................. 1 2 1 0 0
Private Entity................................................... 31 77 5 132 28
Unions........................................................... 0 1 4 1 0
Other............................................................ 2 8 0 17 8
----------------------------------------------------------------------------------------------------------------
\1\ Public Act 93-1078 became effective 1/1/06.
\2\ Charges docketed through 10/27/09.
\3\ Comparison NA due to partial year statistics.
Exhibit B.--Religious Organizations, Initiative and Leaders Who
Publicly Supported the 2006 Amendments to the Illinois Human Rights Act
Adorers of the Blood of Christ, Ruma, IL; Advocate Health Care;
Alexian Brothers, Provincial Council, Elk Grove Village; American
Jewish Congress; Congregational Church, United Church of Christ,
Jacksonville, IL; Daughters of Charity, East Central Province;
Daughters of Charity, Chicago; Divine Word Missionaries, Provincial
Council, Techny, IL; Eighth Day Center for Justice; Epiphany United
Church of Christ, Chicago; Franciscan Friars, Sacred Heart Province;
Franciscan Sisters of Wheaton, Provincial Council; Good Shepherd
Parish, Chicago; Little Company of Mary Sisters, Evergreen Park, IL;
National Assembly of Religious Brothers; National Coalition of American
Nuns; Pilgrim Congregational Church, Oak Park, IL; Presentation
Sisters; Project IRENE; Protestants For the Common Good; Resurrection
Metropolitan Community Church; School Sisters of Notre Dame; Sisters of
Charity of the Blessed Virgin Mary, Great Lakes Region; Sisters of
Christian Charity, Wilmette; Sisters of the Living Word, Living Word
Center; Sisters of Loretto; Sisters of Mercy of the Americans, Chicago
Region, Leadership Team; Sisters of Notre Dame de Namur; Sisters of
Providence, Maternity BVM Convent; Sisters of St. Dominic of St.
Catherine; Sisters of St. Francis of Assisi, Peace and Justice
Committee; Sisters of St. Joseph of LaGrange, Peace & Justice
Committee; University Church, Chicago.
Bishop Sheldon Duecker, United Methodist Church; Reverend Dr. Jane
Eisler Hoffman, Conference Minister, United Church of Christ,
Westchester, IL; Bishop Sherman Hicks, Former Bishop, Metropolitan
Synod, Evangelical Lutheran Church of American; Bishop Edward
MacBurney, Retired Episcopal Bishop of Quincy; Bishop William D.
Parsell, Episcopal Diocese of Chicago; Bishop Joseph Sprague, United
Methodist Church; Bishop James Wilkowski, Evangelical Catholic Church.
St. Katherine Bales, Dominican Sisters, Rantoul, IL; Fr. Robert
Bossie, Sacred Heart Fathers, Chicago; Rev. Wayne T. Bradley, Pastor,
Good Shepherd Parish MCC, Chicago; Rev. Cheryl Burke, Association
Minister, Fox Valley Association, United Church of Christ, Elgin, IL;
Rev. John D. Bultrick, Association Minister, Illinois Conference,
United Church of Christ; Gary Cozette, Chicago Religious Leadership on
Latin America; Marguerite Cleary, Barat College, Lake Forest; Fr. Ted
Cirone, Claretian Missionaries; Rev. Ann Marie Coleman, Co-Senior
Pastor, University Church; Rev. Donald Coleman, Co-Senior Pastor,
University Church; Sr. Marion Dahlke, SSSF, Ministry Director, School
Sisters of St. Francis; Sr. Kathleen Desautels, SP, Sisters of
Providence, Justice Coordinator; Rev. Shane Desautels, Pastor,
Resurrection MCC, Chicago; Sr. Karen Donahue, Justice Coordinator,
Sisters of Mercy of the Americas, Aurora; Fr. Charles Faso, OFM,
Franciscan Friars; Sr. Pat Francis, Dominican Sisters, Chicago; Rev.
Edward E. Goode, Association Co-Minister, Chicago Metropolitan
Association, Illinois Conference United Church of Christ; Br. Gerald
Meeghan, SDB; Sr. Rebecca Ann Gemma, Dominican Sisters, Springfield;
Rev. Edward E. Goode, Association Co-Minister, Chicago Metropolitan
Association, Illinois Conference, United Church of Christ; Sr. Mary
Ellen Green, OP, Prioress, Sinsinawa Dominican Sisters, Eastern
Province; Rev. Carla Grosch, Seniors Minister, Pilgrim Congregational
Church, United Church of Christ, Oak Park, IL; Fr. Kurt Hartrich,
Franciscan Friaras, Sacred Heart Province; Sr. Therese Marie Havlik,
Norridge, IL; Rev. Thomas Henry, Senior Pastor, St. Pauls Church,
Chicago; Fr. John Huels, OSM, Prior Provincial Servite Friars; Rev.
Jerry Wagenstedt, Senior Vice President, Advocate Health Care; Sr. Mary
Lou Larkin, Sisters of Charity, BVM; Rev. Joseph Liang, United Church
of Christ; Sr. Gervase, Lisner, School Sisters of St. Francis; Sr.
Maureen McCormack, SL President, Sisters of Loretto; Sr. Barbara Maas,
Sisters of the Living Word; Sr. Stephanie Mertens, ASC, Adorers of the
Blood of Christ, Ruma, IL; Sr. Rose Mary Meyer, BVM, Director, Project
IRENE; Rev. Calvin S. Morris, PH.D., Chicago; Rev. Rich Pleva, Prairie
Association Minister, Illinois Conference; United Church of Christ,
DeKalb, IL; Sr. Donna Quinn, OP, National Coalition of American Nuns,
Evergreen Park, IL; Patricia Reiss, Barat College, Lake Forest, IL; Sr.
Joellen Sbrissa, CSJ, Sisters of St. Joseph of LaGrange, Peace &
Justice Committee, LaGrange, IL; Sr. Rose Miriam Schulte, OP, Dominican
Sisters of Springfield; Rev. Betty Sue Sherrod, Pastor, Congregational
Church, Jacksonville, IL; Rev. Lynne M. Simcox, Association Co-
Minister, Chicago Metropolitan Association Illinois Conference of the
United Church of Christ; Fr. Michael Joseph Stengel, Chicago, IL; Sr.
Anita Swansen, OSM, Servants of Mary; Rev. Jerry Wagenknecht, Senior
Vice President, Advocate Health Care; Sr. Elizabeth Wirth, Sisters of
Charity, BVM; Sr. Marguerite Yezek, Sisters of Charity, BVM.
The Chairman. Thank you very much, Attorney General
Madigan. And, as I said, all your statements will be made a
part of the record; but, also, the addendums that you had,
which listed all of the religious organizations that supported
this, is quite exhaustive--
Ms. Madigan. Yes.
The Chairman [continuing]. In terms of the number. Thank
you very much for that.
Now we turn to Virginia Nguyen with Nike. Again, we welcome
you, and please proceed, Ms. Nguyen.
STATEMENT OF VIRGINIA NGUYEN, DIVERSITY AND INCLUSION TEAM
MEMBER, NIKE, INC., BEAVERTON, OR
Ms. Nguyen. Thank you, Chairman Harkin and honorable
members of the committee. Again, my name is Virginia Nguyen and
I am part of Nike, Inc.'s, Diversity and Inclusion Team based
in Beaverton, OR, and it is truly an honor and pleasure to
speak on Nike's behalf today. Thank you for this opportunity to
address this important and vital hearing.
Thank you, especially, Senator Merkley, for this invitation
and for your continued commitment to workplace protections. It
was a proud moment in Nike's home State of Oregon, when, in
2007, Governor Ted Kulongoski signed into law the Oregon
Equality Act, a bill strongly championed by you. This law
prohibits discrimination based on sexual orientation in
employment, housing, public accommodations, and other areas.
The law passed with strong bipartisan support, and Nike led the
effort to build support within the Oregon business community to
pass the bill. Once again we are proud to testify our support
behind the long overdue Employment Non-Discrimination Act, and
we are very encouraged that, with your and the committee's
leadership, we are moving a step closer toward passage of this
essential piece of legislation.
Diversity and inclusion at Nike is about respecting our
differences, mining the skills and talent that exist,
leveraging our strengths, and maximizing opportunity for all.
These values are our competitive advantage and make Nike a
better company, passionately supportive of our employees,
respectful of our consumers, and more competitive in our
industry. Our ability to continually innovate and positively
influence as a global corporate citizen hinges on our ability
to welcome diverse perspectives and ideas and to make an
investment in all of our employees.
Nike's support of this bill is a reflection of our own
employment policies, practices, and training programs. These
are designed to reinforce a culture of inclusion and respect,
where each employee can reach their full potential, and this
can only happen in an environment that is free from
discrimination of all types.
To that end, Nike's policy, which we call the Matter of
Respect Policy, prohibits discrimination and harassment and
provides employees with an effective complaint process. This
policy applies to all of Nike's employees worldwide, which
total over 30,000 in over 160 countries, and is consistently
enforced.
From our perspective, ENDA is good for business, for our
employees, and for our community, and here's why:
Nike firmly believes that diversity drives innovation,
which is the cornerstone of our business. We understand that
high-performing teams grow and thrive in an open and welcoming
work environment, where individuals are bringing their full
selves to work. An inclusive work environment and community
enables us to attract and retain the best and the brightest
people around the world.
We support the active involvement of our Nike teammates in
a variety of employee networks, including the Lesbian, Gay,
Bisexual, Transgender Employee and Friends Network. Employee
networks influence Nike on a variety of issues impacting the
lives of our employees and communities where we live and work.
In 2009, for the 7th year in a row, Nike received a perfect
score on the Human Rights Campaign Foundation's Corporate
Equality Index. The Index rates corporations' nondiscrimination
policies, partner benefits, affinity group support, and
engagement of the LGBT community. In 2002, Nike was 1 of only
13 to be given a perfect score, and 7 years later, Nike and its
employees are proud to share the recognition with 259 other
companies.
So, clearly Nike isn't the only company that is having this
conversation and ensuring workplace equality through policy and
practice. Currently, over 85 percent of Fortune 500 companies
include sexual orientation in their equal employment policies,
and more than one-third include gender identity. While this
celebrates the strides made in workplace fairness, it is also a
clear indicator that Federal legislation is lagging, and that
we need a Federal standard that protects everyone's right to
earn a living. That is why Nike is part of the Business
Coalition for Workplace Fairness, a group of over 80 leading
companies that support passage of the Employment Non-
Discrimination Act.
Unfortunately, not all Americans experience this basic
protection. As we've heard, in 29 States it is still legal to
fire or refuse to hire or promote someone because of their
sexual orientation, and in 38 States it is still legal to do so
based on gender identity and expression.
In supporting ENDA, you support the conviction that every
American deserves the chance to compete and prosper on a level
playing field. That fairness is fundamental to our country's
core.
To conclude, one of Nike's corporate maxims is ``Do The
Right Thing.'' This maxim challenges our employees to embrace
the truth, offer transparency, and help shape Nike's evolution
as a global citizen. I am very proud and am very fortunate to
work for a company that consistently strives to uphold this
core value.
On behalf of Nike, we urge you to support this legislation
and do the right thing. Both government and the private sector
have a basic obligation to uphold the principles of equality
and fairness. Act swiftly and pass the Employment Non-
Discrimination Act into law.
Thank you so very much for this opportunity to share our
testimony.
[The prepared statement of Ms. Nguyen follows:]
Prepared Statement of Virginia Nguyen
Chairperson Tom Harkin, and Honorable Members of the committee: My
name is Virginia Nguyen, I am part of Nike Inc's Diversity & Inclusion
team in Beaverton, Oregon, and it is an honor and pleasure to speak on
Nike's behalf today. Thank you for the opportunity to address this
important and vital hearing. Thank you, especially, Senator Merkley,
for this invitation and for your continued commitment to workplace
protections. It was a proud moment in Nike's home State, Oregon, when
in 2007, Governor Ted Kulongoski signed into law Senate bill 2--the
Oregon Equality Act--a bill strongly championed by you, Senator
Merkley. This law prohibits discrimination based on sexual orientation
in employment, housing, public accommodations and other areas. This law
passed with strong bi-partisan support and Nike led the effort to build
support within the Oregon business community to pass the bill. Once
again, we are proud to testify our support behind the long-overdue
Employment Non-Discrimination Act and are very encouraged that with
your and the committee's leadership, we are moving a step closer toward
passage of this essential piece of legislation.
NIKE'S APPROACH
Nike brand's mission is to bring inspiration & innovation to every
athlete in the world. And if you have a body, you are an athlete. For
us, that is the ultimate statement of inclusion and it speaks to what
we at Nike prioritize as our work, and that is to unleash human
potential. Not only for our athletes, but also for ourselves. Diversity
and Inclusion at Nike is about respecting our differences, mining the
skills and talents that exist, leveraging our strengths and maximizing
opportunity for all. These values are our competitive advantage and
make Nike a better company, passionately supportive of our employees,
respectful of our consumers and more competitive in our industry. Our
ability to continually innovate and positively influence as a global
corporate citizen hinges on our ability to welcome diverse perspectives
and ideas and to make an investment in all of our employees.
Nike's support of this bill is a reflection of our employment
policies, practices, and training programs, which have been in place
for decades. These are designed to reinforce a culture of inclusion and
respect where each employee can reach their full potential. This can
only happen in an environment that is free from discrimination of all
types. To that end, Nike's policy prohibits discrimination and
harassment, and provides employees with an effective complaint process.
This policy applies to all of Nike's employees worldwide, which total
over 30,000 across six continents, and is consistently enforced.
From our perspective, ENDA is good for business, for our employees
and our community. Here's why:
Nike firmly believes that diversity drives innovation,
which is a cornerstone of our business.
High performing teams grow and thrive in an open and
welcoming work environment, where individuals are bringing their full
selves to work.
An inclusive work environment and community enables us to
attract and retain the best and the brightest people around the world.
DOING THE RIGHT THING
We support the active involvement of our Nike teammates in a
variety of employee networks, including the Lesbian, Gay, Bisexual,
Transgender and Friends Network (LGBT&F). Employee networks influence
Nike on a variety of issues impacting the lives of our employees and
communities where we live and work.
In 2009, for the seventh year in a row, Nike received a perfect
score on the Human Rights Campaign Foundation's Corporate Equality
Index. The Index rates corporations' treatment of gay, lesbian,
bisexual and transgender employees through their non-discrimination
policies, partner benefits, affinity group support, and engagement of
the LGBT community. In 2002, Nike was one of only 13 companies to be
given a perfect score. Seven years later, Nike and its employees are
proud to share the recognition with 259 other companies--a twenty-fold
increase.
THE BUSINESS COMMUNITY
Clearly, Nike isn't the only company that is having this
conversation and ensuring workplace equality through policy and
practice. Currently, 85 percent of Fortune 500 companies include sexual
orientation in their equal employment policies, and more than one-third
also include gender identity. While this celebrates the strides made in
workplace fairness, it is also a clear indicator that Federal
legislation is lagging and that we need a Federal standard that
protects everyone's right to earn a living. That's why Nike is part of
the Business Coalition for Workplace Fairness, a group of over 80
leading companies that support passage of the Employment Non-
Discrimination Act.
In supporting ENDA, you support the conviction that every American
deserves a chance to compete and prosper on a level playing field; that
fairness is fundamental to our country's core.
Unfortunately, not all Americans experience this basic protection.
In 29 States, it is still legal to fire or refuse to hire or promote
someone because of their sexual orientation. In 38 States, it is still
legal to do so based on gender identify or expression. The Federal
Government and the private sector have an obligation to act upon and to
uphold the principles of equality and fairness that are the foundation
of the Constitution.
CONCLUSION
One of Nike's corporate Maxims is Do the Right Thing. This maxim
strives to challenge our employees to embrace the truth, offer
transparency and help shape Nike's evolution as a global citizen. I am
very proud and fortunate to work for a company that consistently
strives to uphold this core value.
On behalf of Nike, we urge you to support this legislation and do
the right thing. Both government and the private sector have a basic
obligation to uphold the principles of equality and fairness. Act
swiftly and pass the Employment Non-Discrimination Act into law. Thank
you for the opportunity to share our testimony.
The Chairman. Ms. Nguyen, thank you very much for an
excellent presentation and for being here today on behalf of
Nike.
Now we'll turn to Mr. Mike Carney, whom I introduced
earlier, from Springfield, MA. Right?
Mr. Carney. I am sir.
The Chairman. Alright, thank you, Mr. Carney--
Mr. Carney. Thank you. Good morning.
The Chairman. Please proceed.
STATEMENT OF MICHAEL P. CARNEY, POLICE OFFICER, CITY OF
SPRINGFIELD POLICE DEPARTMENT, SPRINGFIELD, MA
Mr. Carney. I'd like to thank you and the Senate Committee
on Health, Education, Labor, and Pensions for the opportunity
to speak on your work on this very important bill.
The Employment Non-Discrimination Act is vitally important
to the gay and lesbian, bisexual, and transgendered community,
but it's even more important to America.
As a first-generation Irish American, I grew up hearing
stories that when the Irish looked for work in the United
States, they found signs that said, ``Irish not need apply.'' I
was also told that these days were behind us, that we could be
anything we wanted to be, in America. I found out the hard way
that that wasn't true.
Today, there remains an invincible but insidious obstacle
to equal employment that cuts across all racial and religious
and ethnic lines in America.
I realized, soon after graduating from the police academy,
that because I was gay, my safety as a police officer and my
future as a public servant was seriously jeopardized. I felt
that I had no choice but to keep my personal life a secret from
my co-workers and my supervisors.
Not being able to share my personal life with those who I
spent time with was extremely painful. Can you imagine going to
work everyday fearing to talk about last night's date, your
spouse, your weekend, or your family? Not being able to share
any part of your personal life to fear of reappraisal or being
ostracized? I did this in a career that prides itself on
integrity, honesty, and professionalism, and where a close bond
with one's colleagues and partner is critical to surviving
dangerous and potential deadly situations.
At my police graduation, a colleague's sexual orientation
became the topic of conversation because he brought a man to
the graduation party. Although he told everybody he was just a
friend, by the end of the evening this new recruit was
assaulted by another officer. That evening I got an early
lesson in how police officers like me are punished on the job,
so I did everything in my power to be one of the boys and hide.
After a few years, another classmate and his partner were
gunned down in the streets, murdered, and it forever changed
the way that I viewed my job as a gay cop. Every time my
partner and I would roll down on a domestic or a gun call, all
I could think of was, Who would notify my life partner? Who'd
be the first--would he be the first to learn about my shooting
on the 11 o'clock news? Who--how many of my colleagues would
show at the funeral? Would they support him?
The more I thought of these things, the more isolated and
insecure I felt, the more singled out, second-class I really,
truly felt I was. I was beginning to feel how my grandfather's
generation felt, that I wasn't good enough; I was a second-
class citizen.
That's when the irony hit me. Wasn't it my job to ensure
the rights of all citizens? Wasn't I sworn to uphold the
Constitution of the United States, a document anchored on
fundamental principle that all men are created equal, endowed
by their creator with certain inalienable rights, that amongst
these are life, liberty, and a pursuit of happiness?
Every day I felt the disconnect, the pain, and the gut-
wrenching fear for my safety as a cop. In 1989, after years of
torment, I hit bottom and I resigned as a police officer. Three
years later, after finding the support that I needed, I decided
to reapply for the job that I loved. After a series of layoffs,
our department was interviewing officers for rehiring, so four
of my colleagues and I applied. During my interview, I told the
police commission I was gay. Of the five applicants, only one
was not rehired. The mayor intervened and asked that I be
granted another interview. At that interview, the police chief
told the police commission I did a commendable job as a police
officer.
In 1994, sighting the police commission's rationale for my
rejection as pretext, the Mass Commission Against
Discrimination ruled probable cause that discrimination did
appear.
I'm a good cop, but I lost 2\1/2\ years of my employment
fighting to get my job back because I'm gay. I never would have
been able to do that if I didn't live in Massachusetts or 1 of
the 13 other States or the District of Columbia that protects
gay employees from discrimination. In fact, if I were a Federal
employee living in Massachusetts, I wouldn't be protected at
all. Do you think that impacts Federal recruitment efforts? I
bet it does.
Workplace discrimination impacts the lives of everyone. It
deprives people of jobs and safe working conditions. It robs
the Federal Government of an exceptional pool of specialists,
and it robs our citizens of the services that they would have
received from talented, dedicated gay and lesbian, bisexual,
transgender workers.
We are much more tolerant of individual differences today
than 10 years ago. I see it in our streets. I see it in the
younger generation and I see it in the older generation. I
believe America is ready to tear down the last walls of
discrimination in our workplace. Encouraged by this wind at our
backs, I hope that Congress will legislate the right of
employees to be judged solely on their work performance. This
is not a Democratic or Republican value; this is an American
value.
I am personally grateful to Chairman Harkin and the
Assistant Attorney General Tom Perez for their kind comments,
and I'm especially grateful to Senator Kennedy--the late
Senator Kennedy and his staff, and to Congressman Barney Frank,
as well as Diego Sanchez, who is Congressman Frank's and
Capitol Hill's first transgendered staff person.
Thank you.
[The prepared statement of Mr. Carney follows:]
Prepared Statement of Michael P. Carney
My name is Michael Carney and I am a police officer in the
Springfield, MA Police Department.
The Employment Non-Discrimination Act is vitally important to the
Gay, Lesbian, Bisexual and Transgender community. But it is even more
important to America.
As a first generation Irish-American, I grew up hearing stories
that when the Irish looked for work in the United States, they found
signs that said, ``Irish need not apply.''
I was also told that those days were behind us; that I could be
anything I wanted to be in America.
I found out the hard way it's not true. Today, sexual orientation
and gender identity remains an invisible but insidious obstacle to
equal employment that cuts across all racial, religious and ethnic
lines in America.
I was gay. And there was nothing I could do about it. I didn't
choose to be. I just was.
It doesn't affect my job performance, but it continues to affect my
employability in America. The following is how I learned it.
On April 9, 1979, I joined the Springfield Police Department as a
Police Cadet. It enabled me to work in every facet of policing while I
obtained my college degree.
In September 1982, after I graduated from the academy, I was
appointed as a police officer. I felt I had no choice but to keep my
personal life a secret from my co-workers and supervisors. Not being
able to share my personal life with those I spent so much time with was
extremely painful.
Can you imagine going to work every day fearing to talk about last
night's date, your spouse, your weekend, your family--not being able to
share any part of your personal life for fear of reprisal or being
ostracized.
I did this in a career that prides itself on integrity, honesty and
professionalism--and where a close bond with one's colleagues and
partner is critical to surviving dangerous and potentially deadly
situations.
At my police graduation, a colleague's sexual orientation became
the topic of conversation because he brought a man to our graduation
party. Although he told everyone he was just a friend, by the end of
the evening the new recruit was assaulted by a fellow officer.
That evening, I got an early lesson on how police officers like me
are punished on the job, so I did everything in my power to be one of
the boys and hide.
A few years later, another classmate and his work partner were
gunned down--murdered on the street. It forever changed the way I
viewed the job as a gay cop.
Every time my partner and I rolled into a domestic or a gun call,
all I could think of was who would notify my life partner? Would he
first learn of my shooting on the 11 o'clock news? How would my
colleagues at my funeral treat him?
The more I thought of these things, the more isolated and insecure
I felt; the more singled-out and second-class I realized I truly was.
I was beginning to feel how my grandfather's generation must have
felt--that I wasn't good enough, that I was a second-class citizen.
And then the irony hit me: wasn't it my job to ensure the rights of
all citizens? Wasn't I sworn to uphold the constitution of the United
States--a document anchored in the fundamental principle that all men
are created equal; endowed by their Creator with certain inalienable
rights; that among these are life, liberty, and the pursuit of
happiness?
Every day, I felt the disconnect, the irony. The pain was deep. I
felt ashamed. I kept thinking, what would happen if they found out?
What would they do?
In 1989, after years of pain and self-abuse from drinking I hit
bottom. I could not face my peers. I felt like I didn't fit in. I was
humiliated. I was afraid. I resigned as a police officer.
Three months later, it turned out to be the turning point of my
life. I got professional help. I've been sober ever since.
A close friend of mine told me, ``the truth will set you free.'' A
year later, I was on the road to a new life as a sober gay man. For the
first time in my life I was honest with my family and friends and lived
with myself openly.
In 1991 I helped co-found the Gay Officers Action League of New
England, a support group for gay law enforcement officers.
Our organization struck a responsive chord with the law enforcement
community. Not only did I meet hundreds like me, our organization began
getting requests from police chiefs around the country asking for
training and practical advice.
I found the support that I needed and in 1992 I decided to return
to the job I loved. I received news that the police department was
taking back officers for reinstatement, so four of my colleagues and I
applied.
I was granted an interview and this time I decided to be honest
with them and tell them who I really was. I came out in that interview.
Three days after my interview, I was notified that I was denied
reinstatement.
I was dumbfounded. I could not believe this was happening. I
retained an attorney and he spoke with city officials. He told me to
reapply. I did and a week later I received a letter stating that I was
denied again. My four colleagues were all reinstated.
I felt like I was kicked in the gut, but this time, I was also
furious. I asked my lawyer to file a complaint with the Massachusetts
Commission Against Discrimination for employment discrimination based
on my sexual orientation.
My lawyer talked me out of it. He said, ``your friends and family
members know about you, but if you file this complaint, it will be a
public document and everyone will know.''
He then talked to the mayor. The mayor agreed that I should be
granted another interview and called the chairman of the Police
Commission. He complied. During the interview, the police chief told
the police commission that I did a ``commendable job as a police
officer.'' The Sheriff of Hampden County also spoke on my behalf.
I felt uplifted and finally believed I would get my job back.
Three days later, I received a letter from the police commission. I
opened it nervously. I could not believe what I read. I was denied
again. I immediately went to the Massachusetts Commission Against
Discrimination and filed the first case of sexual orientation
discrimination against a law enforcement agency in Massachusetts.
A few days later it hit the media. I was out publicly. The police
commission later defended its position, claiming, ``other candidates
were more enthusiastic and more forthright.''
The Massachusetts Commission Against Discrimination's investigation
took 2\1/2\ years of my life--2\1/2\ years that I could not be a police
officer.
I felt so humiliated, so lost. I wondered if I did the right thing.
In 1994, citing the police commission's rationale for my rejection
``as pretext,'' the Massachusetts Commission Against Discrimination
ruled probable cause that discrimination did in fact occur.
On September 22, 1994, the city settled my case and at a press
conference held by the Massachusetts Commission Against Discrimination,
my parents, who were 73 years of age at that time, stood by my side as
the settlement announcement was made. I will never forget how proud
they were of me and how grateful I was that they understood why I put
myself and them and my city through all of this.
I just wanted to be a cop. I've always wanted to be a cop. I
returned to work, and since then I have worked as a police academy
instructor, a detective in the youth assessment center, a detective in
the narcotics division, as an aide to the Chief of Police and most
proudly, I am now assigned to the uniform division.
I've been recognized for saving a man who jumped from a bridge into
the Connecticut River in a suicide attempt. I've received letters of
recognition for a youth mentorship program that I co-founded, as well
as a letter of commendation from the police commission for outstanding
police work in capturing a bank robber.
In 1997, I was a guest at the White House Conference on Hate
Crimes. I served from 1996 to 2002 on the Governors Hate Crimes Task
Force for three governors in Massachusetts.
I have been honored and blessed to serve my department and the
citizens of my community.
I'm a good cop. But I had to fight to get my job because I'm gay.
And I never would have even been able to do THAT--had I not lived in
Massachusetts or in 1 of the 13 other States and the District of
Columbia that protect GLBT people from discrimination.
In fact, if I were a Federal employee living in Massachusetts I
would not be protected at all. Do you think that impacts Federal
recruitment efforts? You bet it does.
Had I not been successful in fighting the bias that tried to
prevent me from working, all the good that I have done for some of the
most vulnerable people in my community would never have happened.
Workplace discrimination impacts the lives of everyone. It deprives
people of jobs and safe working conditions; it robs the Federal
Government of an exceptional pool of specialists; and it robs our
citizens of services they would have received from talented and
dedicated GLBT workers.
The Employment Non-Discrimination Act would guarantee that
America's Gay, Lesbian, Bisexual and Transgender workforce would never
again fear that they might not be hired or keep their jobs, solely
because of their sexual orientation or gender identity.
I'm proud to be an Irish-American. I'm proud to be gay. And I'm
proud to be a cop in Springfield, MA.
We are much more tolerant of individual differences today than 10
years ago. I see it on the streets. I see it in our younger
generations. I see it in our older generations. I believe America is
ready to tear down the last walls of discrimination in the workplace.
Encouraged by this wind at our backs, I hope that Congress will
legislate the right of employees to be judged solely on their
performance. This is not a Democratic or Republican value. It is an
American value.
I am personally grateful to Chairman Harkin and everyone on this
committee for your extraordinary efforts.
I am especially grateful to the late Senator Kennedy and his staff,
and to Congressman Barney Frank and his staff--including Diego Sanchez,
Capitol Hill's first transgender staff.
Thank you.
The Chairman. Mr. Carney, thank you very much for your
courage, both as a police officer, but also your courage in
just being out in front on this for so long and taking those
courageous first steps. I think you stand as a shining example
to so many others. Thanks for being here.
Mr. Carney. Thank you. I'm honored to be here, sir. Thank
you.
The Chairman. Now we turn to Mr. Craig Parshall, senior
vice president and general counsel of the National Religious
Broadcasters Association.
Mr. Parshall, thank you very much for being here.
STATEMENT OF CRAIG L. PARSHALL, SENIOR VICE PRESIDENT AND
GENERAL COUNSEL, NATIONAL RELIGIOUS BROADCASTERS ASSOCIATION,
MANASSAS, VA
Mr. Parshall. Thank you. Thank you, Chairman Harkin. I'd
also like to thank Ranking Member Enzi and the other members of
the committee.
I'm Craig Parshall, senior vice president and general
counsel for National Religious Broadcasters. We do oppose ENDA,
the Employment Non-Discrimination Act of 2009, and I hope to
set forth some of the considerations that have brought us to
that position.
My organization, NRB, is a nonprofit association
representing the interests, first of all, of broadcasters--
Christian radio, Christian television, and Internet
broadcasters--but, we also represent a wide variety of other
Christian ministries, as well: Christian-
oriented public relation agencies, publishing companies,
churches with media outreach, programmers, teaching and
preaching ministries, faith-based humanitarian organizations
that operate worldwide, and more than a dozen Christian
colleges and bible schools.
It's my opinion that ENDA, in its present form, would
impose a substantial and unconstitutional burden on religious
organizations, and would interfere with their effectiveness, in
terms of pursuing their mission. Now, I say that for four
reasons:
No. 1, I believe ENDA, in its current State, would violate
the free exercise of religion. I've examined the exemption, in
Section 6 of ENDA, which merely cross-references the existing
religious exemption under title VII. However, the Federal
courts have construed title VII to mean that a religious
employer can only be exempt regarding its faith-based decisions
that relate to the religious beliefs of the employee.
Now, this is a very important distinction to make, because
secular courts will most likely rule, let's say, if ENDA is
passed and we have a Christian bookstore, as an example, that
decides they do not want to hire a homosexual--the courts will
most likely decide that the decision was really not based on
the job applicant's religion, but on his sex--or her--sexual
orientation or gender identity. As a result, no exemption will
prove to be effective.
Now, this scenario is substantiated by a host of court
cases that have noticed that concept of discrimination based on
gender or sex is very close to, very analogous to,
discrimination based on homosexuality or gender identity. The
courts have already expressed difficulty in drawing the lines
of distinction between those various forms of discrimination.
However, the cases are pretty uniform in one respect:
religious groups gets no exemption when the discrimination is
deemed to be on the basis of gender or sex. As a practical
matter, then many religious employers are simply not going to
be protected under title VII's language that's been imported
into Section 6 of ENDA. That, of course, is going to have a
chilling effect, not only on those that are prohibited, but
those who must guess whether or not they're covered, because of
the language of section 6. This is simply unconstitutional. A
failure to sufficiently provide for the religious autonomy of
private religious employers violates the First Amendment.
No. 2, I believe ENDA would violate the Establishment
Clause: it's a basic principle that courts are prohibited from
conducting searching investigations into the religious doctrine
or dogma of religious groups, because that would constitute
excessive entanglement. But, that's exactly the kind of
invasive inquiry that courts are going to have to make under
title VI as they try to grapple with, let's say, as an example,
a Christian book publisher who decides they don't want to hire
a transgender person in their editorial department. The court's
going to ask, ``Well, does this really have to do with the
religion of the applicant or the applicants sexual orientation
or gender identity?'' Depending on how they decide that, there
may be absolutely no exemption available to a Christian
publisher.
No. 3, It would violate, I believe, freedom of association.
In two recent U.S. Supreme Court cases, civic groups have been
held to have a first amendment Freedom of Association right to
deny participation by openly gay persons. ENDA collides with
those decisions, simply because title VII's religious exemption
scheme is much narrower than the Freedom of Association rights
that have been outlined by the U.S. Supreme Court in those two
cases.
No. 4, Section 6 is going to create massive uncertainty for
religious groups simply because of the history of religious
exemption under title VII. The factors, as an example, used by
the courts in deciding whether a religious group does or does
not qualify varies from circuit to circuit. The Ninth Circuit,
as an example, has a six-factor test. The Third Circuit has
used a nine-factor test. The Third Circuit gives a somewhat
fluid interpretation of title VII Religious Exemptions, but
title IX has construed it narrowly.
There is, frankly, a confusing and crazy-quilt landscape of
cases that give similar organizations different treatment from
circuit to circuit.
But, there's another complication that I see that impacts
our broadcasters. The FCC has specifically developed its own
EEO guidelines exempting from employment discrimination with
regard to faith-based decisions broadcasters that are defined
as, ``religious broadcasters.'' But, the test the FCC uses is
much different than the test that the courts have used under
title VII. What effect ENDA will have on the FCC and hundreds
and thousands of broadcasters around the country, we simply do
not know.
In conclusion, I would urge this committee not to jettison
the rights, or forget the rights, of people of faith or to
treat them as lesser privileges or to reduce the Freedom of
Religion rights of religious organizations to a miniature of
what our founding fathers envisioned. If that happens here, it
means that we've set ourselves on a very dangerous path, I
believe--a radical departure from basic liberties for which our
founders risked their lives, their fortunes, and their sacred
honor.
Thank you.
[The prepared statement of Mr. Parshall follows:]
Prepared Statement of Craig L. Parshall
I am Craig Parshall, Senior Vice-President and General Counsel for
National Religious Broadcasters (NRB). I am appearing today to voice
NRB's opposition to S. 1584, the Employment Non-Discrimination Act of
2009 (ENDA). It is my legal opinion that S. 1584, if passed into law,
would impose a substantial, unconstitutional burden on religious
organizations and would interfere with their ability to effectively
pursue their missions, both of which are non-profit groups, as well as
faith-based institutions and enterprises which operate commercially.
NRB is the pre-eminent association representing the interests of
Christian television, radio and Internet broadcasters. Our organization
also includes in its membership Christian groups not directly engaged
in broadcasting activities but which are involved in activities which
provide support services specifically to religious broadcasters or are
involved in communications-related activities, such as public relations
agencies, law firms with an emphasis on media law, Christian publishing
companies, churches with a media outreach, Christian programmers,
preaching and teaching ministries and faith-based charity and
humanitarian organizations. NRB also has among its membership more than
a dozen Christian colleges and Bible schools. Thus, the wide variety of
Christian organizations comprising our membership provides National
Religious Broadcasters with a unique view of the potential collision
between S. 1584 and the religious liberties of faith-based
organizations.
S. 1584 THREATENS THE CONSTITUTIONAL RIGHTS OF RELIGIOUS EMPLOYERS
S. 1584 is a sweeping new piece of employment discrimination
legislation which protects persons from adverse employment actions that
are based on the ``actual or perceived sexual orientation or gender
identity'' of that person. While the bill references Title VII of the
Civil Rights Act of 1964 as amended, 42 U.S.C. 2000e, et seq., it
structurally stands alone as a separate form of substantive employment
law.
The bill provides a purported ``exemption'' for ``religious
organizations'' in section 6, and then defines the organizational
status that would qualify an employer for exemption by directly
referencing the exemption scheme under title VII.\1\ Section 6 will be
discussed at more length below. However it is my opinion that section 6
is fatally insufficient to protect religious employers. As such, it is
infirm because it violates several protections under the first
amendment.
---------------------------------------------------------------------------
\1\ Title VII exempts religious organizations regarding the
employment of persons ``of a particular religion to perform work
connected with the carrying on'' of the organization's ``activities''
(emphasis added).
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Free Exercise of Religion
When a government law sweeps into its regulatory purview religious
groups whose operations are thereby substantially and selectively
burdened, and it fails to provide ample exemptions for those religious
organizations, it violates the Free Exercise provisions of the first
amendment. Church of the Lakumi Babalu Aye v. Hialeah, 508 U.S. 520,
531-532 (1997).
In the realm of private religious employers, broad and adequate
exemptions for religious organizations are constitutionally imperative.
Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 336 (1987)
(holding that title VII religious exemptions do not collide with the
Establishment Clause but are fully consistent with it, the court in
Amos going on to state: ``Nonetheless, it is a significant burden on a
religious organization to require it, on pain of substantial liability,
to predict which of its activities a secular court will consider
religious.''). The principal expressed in Amos is clear: where
attempted ``exemptions'' in discrimination laws are so unclear,
confusing, or overly broad so as to cause religious organizations to
guess or speculate as to whether they are sufficiently ``religious''
either in structure of activities to qualify for the exemption, then
the religious liberty provisions of the first amendment are violated.
Moreover, where a law is passed in the area of employment
discrimination and it fails, as S. 1584 does here, to provide a
sufficiently adequate exemption for religious institutions regarding
faith-based employment decisions it also violates the Free Exercise
Clause of the first amendment. Montrose Christian School Corp. v.
Carver, Montrose Christian School Corp. v. Walsh, 770 A.2d 111 (Md. Ct.
App. 2001) (county employment discrimination code violated the Free
Exercise rights of a private religious school by failing to provide a
satisfactory, substantive exemption for it, the Court noting that ``[a]
uniform line of cases apply[] this principle, namely that the free
exercise guarantee limits governmental interference with the internal
management of religious organizations . . .''). The Free Exercise
guarantee of the first amendment reflects ``a spirit of freedom for
religious organizations, and independence from secular control or
manipulation . . .'' Kedroff v. St. Nicholas Cathedral of Russian
Orthodox Church, 344 U.S. 94, 116 (1952).
Establishment Clause
The Establishment Clause prohibits excessive entanglement between
government and religion. N.L.R.B. v. Catholic Bishop of Chicago, 440
U.S. 490 (1979) (exemption of religious schools from Federal National
Labor Relations Board oversight). Walz v. Tax Commission, 397 U.S. 664
(tax exemption for religious groups wisely facilitates a ``desired
separation [of government from religion] insulating each from the
other''). Confusion has been created in the section 6 religious
exemption of S. 1584, as it attempts to exempt only those religious
groups that would be exempt under title VII. But by doing that, section
6 will invite courts to engage in searching inquiries into the beliefs
and doctrines of religious employers regarding homosexuality,
lesbianism, bisexuality, transgenderism and similar issues in an
attempt to parse-out the scope of the religious exemption in section 6;
i.e. to determine whether, under the provisions of S. 1584 (which does
expressly include sexual orientation and gender identity as categories
for protection) a religious employer would, under the language of
section 6, be ``exempt from the religious discrimination provisions of
title VII'' (which does not expressly provide protections for sexual
orientation or gender identity). This kind of apples-and-oranges
incorporation of title VII into section 6 of S. 1584 creates another
world of uncertainty for religious organizations. As will be discussed
in more detail below, if sexual orientation and gender discrimination
are construed by courts to be more like traditional ``sex''
discrimination under title VII, then religious groups will be given no
practical exemption or a very limited one, but if those categories of
discrimination are deemed to be more like ``religious discrimination''
then some religious groups (i.e. those recognized organizationally
under the title VII religious exemption) might be entitled to
exemption.
One added concern is that section 6 of S. 1584, through its
adoption wholesale by cross-reference to the title VII religious
exemption scheme, has also incorporated title VII's separate exemption
provision for religious schools. That exemption applies where the
school's curriculum is determined to have been ``directed toward the
propagation of a religion.'' However, this is an intensely intrusive
and unconstitutional inquiry for any secular court to undertake. A
school seeking this exemption paradoxically would have to forfeit its
private religious autonomy, in effect, in order to try to save it. When
the government exercises an ``official and continuing surveillance''
over the internal operations of a religious institution, religious
freedom under the first amendment is jeopardized. Walz v. Tax
Commission of the City of New York, 397 U.S. 664, 675 (1970). A secular
court may not review a religious body's decisions on points of faith,
discipline, or doctrine, Watson v. Jones, 80 U.S. 679 (1872), nor may
it govern the affairs of religious organizations. Serbian E. Orthodox
Diocese v. Milivojevich, 426 U.S. 696 (1976).
Freedom of Association
The first amendment's free association guarantee has been
interpreted to mean that a discrimination law could not be used to
force the Boy Scouts of America to employ a professed homosexual as an
assistant scout leader. Boy Scouts of America v. Dale, 530 U.S. 640
(2000). And while Dale did involve a non-profit association as a party,
and it addressed the groups ``moral'' (as opposed to religious)
objections to homosexuality, the Supreme Court nowhere conditioned its
reasoning on that fact that the Boy Scouts were a non-profit
organization. Further, ``moral'' beliefs are not explicitly protected
under the first amendment as a stand-alone right; rather they were
protected in Dale because they were anchored to the Free Speech aspects
of the right of Association. By contrast, religion is given explicit
protection in the first amendment in its own right and therefore ought
to receive even more protection under the principals of the Dale case.
This would mean that S. 1584 is of questionable constitutionality
regarding its negative impact on those religious group that have faith-
based objections to hiring persons who are self-identified as
homosexuals or persons of non-heterosexual gender identity. Private
religious employers, like private associations, must be given the right
to reject members or staff who would conflict with the religious
organization's declared mission and beliefs. A religious group has
``the autonomy to choose the content of [it's] own message.'' Hurley v.
Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557
(1995)
S. 1584'S RELIGIOUS EXEMPTION PROVISION IS FATALLY FLAWED
S. 1584 prohibits employment discrimination regarding the ``actual
or perceived sexual orientation or gender identity'' of any person.
Sec. 6 purports to provide an exemption for ``a corporation,
association, educational institution, or society that is exempt from
the religious discrimination provisions of Title VII of the Civil
Rights Act . . .'' (hereinafter title VII). Thus, sec. 6 shifts the
inquiry back to the ``religious discrimination provisions'' of title
VII. However, S. 1584 does not define what it means by the phrase
``religious discrimination provisions'' of title VII. One likely
interpretation is that the phrase could be construed to mean
``discrimination on the basis of religion.'' See: E.E.O.C. v.
Mississippi College, 626 F.2d 477, 484 (5th Cir. 1980). But what does
title VII's exemption mean when it says that it permits discrimination
``on the basis of religion? '' According to Petruska v. Gannon
University, 462 F. 3d 294 (3rd Cir. 2006) it means this: ``The statute
exempts religious entities and educational organizations from its non-
discrimination mandate to the extent that an employment decision is
based on an individual's [i.e. the plaintiff 's] religious
preferences'' (emphasis added). The current state of the law is that
organizations can be exempted from the operation of title VII only
regarding adverse employment decisions which are made ``on the basis of
[the] religion'' of the plaintiff; however, generally speaking, title
VII grants no exemption for religious organizations whose actions are
held to implicate discrimination on the basis of the ``race, color, sex
or national origin'' of the plaintiff, regardless of the alleged
religious motivations of the religious organization. Id. See also:
Rayburn v. Gen'l Conf. of Seventh Day Adventists, 772 F.2d 1164, 1166
(4th Cir. 1985).
This distinction is critical. It is foreseeable that future courts
could construe the adverse decisions of faith-based groups regarding
non-hiring of homosexuals, as an example, as being more akin to
discrimination based on ``race . . . [or] sex'' than discrimination
``on the basis of religion.'' An even stronger argument might be made
that ``gender identity'' discrimination by a religious organization is
tantamount to discrimination based on ``sex'' (a gender issue) and
therefore, because the religious group would not qualify for exemption
under title VII for sex discrimination, neither will it receive
exemption for ``gender identity'' discrimination under S. 1584. This
likely confusion by the courts is not just idle speculation. As the
Court said in Powel v. Wise Business Forms, Inc.,_F.3d_(3rd Circuit,
August 28, 2009) appeal No. 07-3997, slip op. page 14: ``. . . the line
between sexual orientation discrimination and discrimination `because
of sex' can be difficult to draw.'' The end result of the uncertainty
created by section 6 could well be that the supposed protections
contained in its religious ``exemption'' in S. 1584 would prove in the
end to have been only a mirage.
But even aside from these intractable problems of whether the
wholesale adoption of title VII religious exemptions into a ``sexual
preference'' and ``gender identity'' discrimination law actually
provides any protection whatsoever from a religious liberty standpoint,
there are other insurmountable difficulties in S. 1584.
SEC. 6 SIMPLY COMPOUNDS A CRAZY QUILT OF INCONSISTENT COURT DECISIONS
By bootstrapping title VII's religious exemption language into sec.
6, the ENDA bill, S. 1584, subjects religious organizations to a crazy-
quilt of inconsistent decisions that have been rendered by the courts
in construing the exemption language of title VII. This approach will
stultify and confuse religious groups and lead to endless, expensive,
and harassing litigation.
Title VII (42 U.S.C. Sec. Sec. 2000e et seq.) provides in part:
This title . . . shall not apply to . . . a religious
corporation, association, educational institution, or society
with respect to the employment of individuals of a particular
religion to perform work connected with the carrying on by such
corporation, association, educational institution, or society
of its activities.
Unfortunately, Congress ``did not define what constitutes a
religious organization,--`a religious corporation, association,
educational institution, or society' '' under title VII. Spencer v.
World Vision, Inc., 570 F. Supp. 2d 1279, 1283 (W.D. Wash. 2008). As a
result, ``courts conduct a factual inquiry and weigh `[a]ll significant
religious and secular characteristics . . .' '' Id. (citations
omitted).
What has resulted is a sad pattern of inconsistent and complex
decisions which render very scant religious freedom to faith groups but
which have sent a chilling pall over their activities not to mention
their budgets: Leboon v. Lancaster Jewish Community Center Association,
503 F. 3d 217 (3rd Cir. 2007) (Jewish Community Center qualified as a
religious organization so that its firing of a Christian was non-
actionable under title VII); but compare: EEOC v. Townley Eng'g & Mfg.
Co., 859 F. 2d 610 (9th Cir. 1988) (no exemption for small, closely
held manufacturing shop whose owner had a clearly Christian world view
and wanted it to permeate the work place). A Christian humanitarian
organization dedicated to ministering to the needs of poverty-stricken
children and families around the world was entitled to take adverse
employment actions against an employee because of that person's
religion because it qualified for exemption under title VII (Spencer v.
World Vision, Inc., supra); but a Methodist orphan's home dedicated to
instilling in orphaned children Christian beliefs was held not to be
qualified as a ``religious corporation . . .'', etc. where it had a
temporary period of increased secular leadership followed by return to
its original spiritual mission, Fike v. United Methodist Children's
Home of Virginia, Inc., 547 F. Supp. 286 (E.D. Va. 1982). Further
compare: Feldstein v. Christian Science Monitor, 555 F. Supp. 974 (D.
Mass. 1983) (newspaper covering secular news but with close
relationship with the Christian Science Church allowed to discriminate
on basis of religion).
The legal tests employed by the courts in deciding religious
exemptions under title VII are complex and discordant. The 9th Circuit
has employed a complicated six-factor test. Spencer, supra at 570 F.
Supp. 2d 1284. Whereas the 6th Circuit has applied an even more complex
nine-factor test. Id. at 1285-86. In addition, the 9th Circuit has
construed the religious exemption narrowly, whereas the 3rd Circuit has
not. Id.
The chances that the religious exemption in sec. 6 of S. 1584 would
be given a very narrow, cramped interpretation are substantial. Where
general discrimination laws collide with sincerely held religious
beliefs, religion often loses. See: Bob Jones University v. U.S., 461
U.S. 574 (1983) (private religious college loses its tax exempt status
as a non-profit religious corporation because, while it admitted
students from all races, its inter-racial dating rules were found to
violate a national policy regarding discrimination). In Bob Jones
University the Supreme Court could only muster a meager reference to
the thoroughly religious school's Free Exercise rights, holding that
the compelling interest of the government in stamping out
discrimination outweighed ``whatever burden'' was caused to the
organization's freedom of religion. Id. at 604. To the extent that
``sexual preference'' or ``gender identity'' discrimination are likened
by the courts to racial discrimination, religious organizations will
find little comfort under sec. 6 of S. 1584. See also Swanner v.
Anchorage Equal Rights Commission,_U.S._, 115 S.Ct. 460 (1994)(Thomas,
J., dissenting) where the Supreme Court declined the chance to grant
certiorari and to vindicate the rights of a landlord successfully sued
for State housing discrimination where he refused on religious grounds
to rent to unmarried couples.
Title VII grants a separate exemption specifically for religious
schools. 42 U.S.C. Sec. Sec. 2000e-2 (e)(2) provides exemption for such
religious institutions provided that they are at least ``in substantial
part owned, supported, controlled, or managed by a particular religion
or by a particular religious corporation, association, or society . .
.'' or where the curriculum ``is directed toward the propagation of a
religion.''
But here again the resulting court interpretations there have been
just as dismal: EEOC v. Kamehameha School/Bishop Estate, 990 F.2d 458
(9th Cir. 1993), cert. denied, 114 S. Ct. 439 (1993) (private
Protestant religious school was denied title VII religious exemption
even though it had numerous religious characteristics and activities);
Pime v. Loyola University of Chicago, 585 F. Supp. 435 (N.D. Ill.
1984)(Catholic college held not to be entitled to religious exemption
relating to its preference for Jesuit professors over a Jewish
professor), reversed on other grounds at 803 F.2d 351 (7th Cir.
1986)(where Judge Posner noted in his concurrence that, regarding the
religious exemption issue, ``the statute itself does not answer it,''
and ``the legislative history . . . is inconclusive,'' Id. at 357).
Contrast with: Hall v. Baptist Memorial Care Corp., 215 F. 3d 618 (6th
Cir. 2000) (Baptist entity training students for health care had
sufficiently religious overtones to qualify for exemption regarding its
firing of a lesbian staffer who was a minister at a pro-homosexual
church).
N.R.B.'s membership includes some 200 Christian radio stations that
are commercial in their organizational structure. Considering the
chilly reception such commercial religious entities receive by the
courts when they are other than non-profit corporations, they can
expect to be shut out of any exemption under S. 1584 in litigation. We
can add to that list other of our for-profit members whose mission is
Christian in nature but who will be denied exemption: Christian
publishers, religious media consulting groups and agencies. Also, food
vendors who work exclusively with Christian schools may be denied
exemption; Christian-oriented bookstores, adoption agencies, counseling
centers and drug rehab facilities will also suffer the same fate.
CONFUSION REGARDING THE FCC'S EEO JURISDICTION
Currently, the Federal Communications Commission has promulgated
EEO rules regarding broadcast licensees. An exemption is provided for a
``religious broadcaster'' regarding all employment decisions impacting
religious belief, but they still must abide by a non-discrimination
standard respecting ``race . . . or gender.'' Review of the
Commission's Broadcast and Cable Equal Employment Opportunity Rules and
Policies, 17 FCC Rcd. 24018 (2002) (``EEO Order''), 50, 128.
Would S. 1584 supersede the regulations of the FCC regarding the
employment activities of broadcasters? We simply do not know. The only
help we have in answering that comes from a sparse comment in The
King's Garden, Inc. v. FCC, 498 F. 2d 51, 53 (D.C. Cir. 1974)(FCC is
justified in pursuing its own EEO regulations against religious
broadcasters where ``Congress has given absolutely no indication that
it wished to impose the [title VII] exemption upon the FCC''). Nothing
in the language of S. 1584 gives us any congressional intent to
regulate broadcasters. On the other hand, would this new legislation be
held to regulate those broadcasters that do not qualify for the FCC's
definition of a ``religious broadcaster? '' The FCC has generated a
``totality of the circumstances'' test for what is, or is not, a
``religious broadcaster'' that differs from the title VII language. S.
1584 exponentially increases the uncertainty regarding which law
applies. Furthermore, would ``gender identity'' protections under S.
1584 be viewed as the same, or different from the requirement imposed
by the FCC that even religious broadcasters not discriminate on the
basis of ``gender? '' Again, such uncertainties only ratchet-up the
probability that the religious liberties of Christian broadcasters and
communicators will be chilled as they try to speculate what the law
actually provides and what their rights really are.
SEXUAL ORIENTATION AND GENDER IDENTITY ARE ALREADY PROTECTED
S. 1584 declares that the ``purposes of his Act'' are in part ``to
provide . . . meaningful and effective remedies'' for ``employment
discrimination on the basis of sexual orientation or gender identity.''
Section 2, Purposes, paragraph (1). Yet that stated purpose behind S.
1584 ignores the fact that remedies already exist in Federal employment
law. Title VII has been construed to already provide ``gender
stereotyping'' discrimination protection for homosexuals or persons of
non-heterosexual gender identity under existing ``sex discrimination''
provisions. Powel v. Wise Business Forms, Inc.,_F.3d_ (3rd Circuit,
August 28, 2009) appeal No. 07-3997. See also: Vickers v. Fairfield
Med. Ctr., 453 F.3d 757 (6th Cir. 2006); Nichols v. Azteca Rest.
Enters., Inc., 256 F 3d 864 (9th Cir. 2001); Higgins v. New Balance
Athletic Shoe, Inc., 194 F. 3d 252 (1st Cir. 1999).
CONCLUSION
S. 1584, and its companion ENDA bill in the House of
Representatives, H.R. 3017, are the result of a public debate over
sexual orientation and gender identity legal protections. But when we
consider the entire course of American history, that debate is of very
recent vintage.
Compare, by contrast, the long-standing recognition in our Nation
that religious liberty is a foundational right and that government
should have few occasions to invade it. In fact, that concept of
religious freedom pre-dates the Constitution. America's first Supreme
Court Chief Justice, John Jay, a decade before the constitutional
convention, described the notion of free exercise of religion this way:
``. . . Adequate security is also given to the rights of conscience and
private judgment. They are by nature subject to no control but that of
the Deity, and in that free situation they are now left. Every man is
permitted to consider, to adore, and to worship his Creator in the
manner most agreeable to his conscience.'' \2\
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\2\ John Jay's ``Charge to the Grand Jury of Ulster County,'' April
20, 1777 cited in Henry P. Johnston, ed., The Correspondence and Public
Papers of John Jay 1745-1826, (New York: Da Capo Press, 1971), Volt. I,
page 163.
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John Witherspoon, a member of the Continental Congress and signer
of the Declaration of Independence was an evangelical minister who also
served as President of the College of New Jersey (later renamed
Princeton). His students at that school included future signers of the
Declaration as well as delegates to the constitutional convention.
James Madison was one of them. Witherspoon recognized the inherent
relationship between civil liberty and religious freedom and when
assaults came against either, both rallied in support of the other. He
stated the matter well when he said in the paradigm of a prayer: ``God
grant that in America true religion and civil liberty may be
inseparable and that unjust attempts to destroy the one, may in the
issue tend to the support and establishment of both.'' \3\
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\3\ ``The Dominion of Providence Over the Passions of Men,''
delivered at Princeton on May 17, 1776, from The Selected Writings of
John Witherspoon, edited by Thomas Miller (Carbondale, Ill.: Southern
Illinois University Press 1990), page 147.
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S. 1584 and its companion in the House represent an assault on
these historical notions of religious freedom. Time and the
deliberative decisions of this Senate will determine whether the idea
behind John Witherspoon's prayer will be honored. We urge this
committee not to jettison the rights of people of faith, turn them into
lesser privileges, or reduce them to a mere miniature of the concept
that our Founder's held. If that happens here, it means that we have
set ourselves on a very dangerous path, a radical departure from those
basic liberties for which our Founders risked their lives, their
fortunes and their sacred honor. Thank you.
The Chairman. Thank you very much, Mr. Parshall.
Now we turn to Ms. Camille Olson, a partner of Seyfarth
Shaw, LLP.
Ms. Olson, welcome back. You've been here before.
Ms. Olson. Thank you.
The Chairman. Thank you.
Ms. Olson. It's good to be here again.
STATEMENT OF CAMILLE A. OLSON, PARTNER, SEYFARTH SHAW, LLP,
CHICAGO, IL
Ms. Olson. Good morning. Thank you, Chairman Harkin and
other members of the committee.
My name is Camille Olson. I'm a partner with Seyfarth Shaw,
a national law firm, where I'm the chair of its National
Complex Discrimination Litigation Practice Group. I also
regularly teach equal employment opportunity law at Loyola
University School of Law in Chicago, IL, which is my hometown.
My practice is focused on representing employers to ensure
that their policies and their practices comply with equal
employment opportunity laws and nonharassment laws in the
workplace. That work entails developing practices, policies,
and compliance strategies, training managers and supervisors on
their legal obligations in the workplace, as well as defending
companies regarding challenges to those employment policies and
practices.
I strongly support equal employment opportunities in
employment, and in particular ensuring that employment
decisions are based upon an individual's qualifications for a
job and other legitimate nondiscriminatory factors. I believe
that the fair and consistent application of workplace policies
and practices is instrumental to an employer's success as an
employer of choice in the community.
With respect to my comments today, my testimony is provided
as a summary of some of my legal analysis on certain provisions
of Senate bill 1584 as it applies to private employers. My
testimony is provided in the hopes that it will result in
clarification of certain of the provisions for the benefit of
both employees and employers alike.
ENDA already demonstrates the significant examination and
debate that has taken place over the years concerning the
extension of protections in employment to individuals on the
basis of sexual orientation and/or gender identity. Indeed,
certain changes from the current version, as compared to early
bills, reflect an understanding of the need to provide clarity
in the workplace to ensure compliance with the legislation by
carefully describing the obligations of employers and
employees.
My written testimony highlights six points of uncertainty
which I believe would benefit from further clarification, and
I'd like to summarize those for you now.
There are three general points of clarification.
The first one is that I believe ENDA should be clarified to
eliminate the possibility of double coverage and/or a double
recovery for claims filed under both title VII and ENDA based
on a common set of facts. This is because, as set forth in my
written testimony, some courts have recognized that conduct
based on sex stereotyping may be actionable under title VII,
issues that would also be actionable under ENDA. Given the
complicated issues inherent in gender discrimination, ENDA has
been drafted as a stand-alone bill--stand-alone, as opposed to
an amendment to title VII--to address these specific issues
specific to gender identity claims. A number of the reasons for
that have been articulated already in the testimony of other
witnesses today.
Second, I believe ENDA should also be clarified to include
a definition of ``disparate impact.'' ``Disparate impact'' is
stated in ENDA. but it doesn't reference a definition. If it is
intended to pick up a definition from title VII, as other
definitions in ENDA are intended to be picked up from title
VII, those title VII provisions are specifically identified in
ENDA. I would ask that the committee consider incorporating the
definition that's contained in section 2000(e)(2)(k) of title
VII as the ``disparate impact'' definition of ENDA, to make it
clear what, in fact, is being talked about in connection with
that particular phrase.
Third, with respect to another general clarification, ENDA
should be clarified to make sure that it's clear that it is
intended to include the same remedies that are contained within
title VII. That's particularly true with respect to the
remedies provisions. ENDA states that the procedures and
remedies available under title VII are those that should be
applicable under ENDA, and yet that isn't what the language of
ENDA says after that particular statement. Instead, it says
that it provides for attorney's fees with respect to
administrative proceedings, for example.
ENDA should clearly State that it is not intended to allow
the EEOC to award attorney's fees to private-sector
participants in administrative hearings before it. Any other
result would provide more remedies for sexual orientation or
gender identity discrimination that are currently available for
discrimination under title VII or available under the Age
Discrimination and Employment Act.
Let me also mention there are three specific provisions
that require clarification with respect to an employer's
obligations to accommodate employees with respect to gender
identity issues in the workplace.
There are two provisions in ENDA that require employers to
accommodate employees with respect to employment practices.
Those obligations are triggered, upon notification by the
employee that the employee has undergone, or is undergoing,
gender transition. A few issues come immediately to mind.
First, I think it would be very helpful to employers and
employees if everyone knew what triggered an employer's
affirmative obligation with regard to shared facilities and
application of the employer's dress and grooming standard. What
notice is required? Is it written or verbal? Is it permissible
for an employer to request documentation from a third-party
professional, much like an employer does with respect to an ADA
issue or an FMLA issue? Currently, ENDA doesn't really address
that issue.
Second, what does it mean to have undergone, or to be
undergoing, gender transition? The terms are undefined in ENDA,
as it currently exists, and the process may include a variety
of steps. I think it would be helpful to have that defined.
Third, and this is an important issue, in connection with
ENDA, ENDA describes a fact that certain shared facilities,
with respect to shared facilities where it may be inevitable
that a person might be unclothed, would have certain
accommodation obligations. As defined in ENDA, though, the
certain shared facilities are shared showers or dressing
facilities, and it doesn't--and it provides very good guidance
to employers on those issues and describes a number--two
different ways in which employers and employees can comply with
a modification of a policy. The question that I raise is, Is
that analysis also to apply to restrooms? I'm not suggesting
that Section 8(a)(3) of ENDA be revised to include all
restrooms, but that the committee consider whether it should be
revised to include certain restrooms where being clothed would
be unavoidable.
Finally, the last issue is, I believe ENDA should be
clarified to specifically state whether employers are required
to modify existing facilities with respect to section 8(a)(3).
The language says that an employer is not required to construct
new facilities. It doesn't really address the issue of
modification. Is an employer required to modify? I believe that
the committee could provide guidance through specific language
in ENDA. And, if so, if a modification is required, on what
timetable and to what extent? There would be less ambiguity,
less confusion, and there would be more likelihood that
individuals would understand how to comply with ENDA.
In conclusion, I believe the issues raised here should be
considered and addressed as the committee continues to consider
ENDA. I'd like to thank the committee, including, in
particular, Chairman Harkin and other members of the committee,
for the opportunity for me to share my thoughts with respect to
ENDA.
Thank you very much.
[The prepared statement of Ms. Olson follows:]
Prepared Statement of Camille A. Olson
Good afternoon, Mr. Chairman and members of the committee. My name
is Camille A. Olson, and I am pleased to present this testimony
addressing S. 1584, the Employment Non-Discrimination Act of 2009 (``S.
1584'' or ``ENDA''). I am a Partner with the law firm of Seyfarth Shaw
LLP. Seyfarth Shaw is a national firm with 10 offices nationwide, and
one of the largest labor and employment practices in the United States.
Nationwide, over 350 Seyfarth Shaw attorneys provide advice, counsel,
and litigation defense representation in connection with equal
employment opportunities, as well as other labor and employment matters
affecting employees in their workplaces.\1\
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\1\ I would like to acknowledge Seyfarth Shaw attorneys Annette
Tyman and Sam Schwartz-Fenwick for their invaluable assistance in the
preparation of this testimony.
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I. INTRODUCTION
I am the Chairperson of Seyfarth Shaw's Labor and Employment
Department's Complex Discrimination Litigation Practice Group. I have
practiced in the areas of employment discrimination counseling and
litigation defense for over 20 years in Chicago, IL. I am a member of
both the California and Illinois bars. Members of our firm, along with
our training subsidiary, Seyfarth Shaw at Work, have written a number
of treatises on employment laws; advised thousands of employers on
compliance issues; and trained tens of thousands of managers and
employees with respect to compliance with their employer's policies
relating to equal employment opportunities and non-harassment in the
workplace, as well as the requirements of State and Federal employment
laws. We have also actively conducted workplace audits and developed
best practices for implementation of new policies addressing employer
obligations on a companywide, statewide, and/or nationwide basis
(depending on the particular employment practice at issue).
My personal legal practice specializes in equal employment
opportunity compliance--counseling employers as to their legal
obligations under Federal and State law, developing best practices in
the workplace, training managers and supervisors on the legal
obligations they have in the workplace, and litigating employment
discrimination cases. I also teach equal employment opportunity law at
Loyola University School of Law in Chicago, IL. I am a frequent
lecturer and have published numerous articles and chapters on various
employment and equal employment opportunity issues. For example, in
2009 I co-edited a book now in its Sixth Edition entitled Guide to
Employment Law Compliance for Thompson Publishing Group; and, in late
2008 and 2009, I, along with other Seyfarth Shaw partners, have
conducted numerous webinars, teleconferences, and full-day seminars
across the country for employers and the Society for Human Resource
Management on an employer's new obligations under the recently passed
amendments to the Americans with Disabilities Act, 42 U.S.C.
Sec. Sec. 12101-12213 (1994) (``ADA'').\2\ I am also a member of the
U.S. Chamber of Commerce's Policy Subcommittee on Equal Employment
Opportunity, and I am a member of the Board of Directors of a number of
business and charitable institutions.
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\2\ The amendments to the ADA are contained in the Americans with
Disabilities Act Amendments Act, 42 U.S.C. Sec. 12101, et seq. and 29
U.S.C. Sec. 705 (2008) that became effective January 1, 2009.
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II. SUMMARY OF TESTIMONY
Today, I have been invited to discuss with you the impact of the
Employment Non-Discrimination Act of 2009 in the employment context,
separate and apart from my relationship with the above-noted
institutions, clients, and associations. I strongly support equal
opportunities in employment, and, in particular, ensuring that
employment decisions are based upon an individual's qualifications for
a job (including education, experience, and other relevant
competencies), as well as other legitimate nondiscriminatory factors.
Similarly, I believe that fair and consistent application of workplace
practices and policies is instrumental to an employer's success as an
employer of choice in the community.\3\
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\3\ Seyfarth Shaw is a nationwide employer of over 1,650 persons
providing services throughout the United States. Seyfarth Shaw's non-
discrimination policy, applicable to all employees, states as follows:
``Seyfarth Shaw is committed to the principles of equal employment
opportunity. Firm practices and employment decisions, including those
regarding recruitment, hiring, assignment, promotion and compensation,
shall not be based on any person's sex, race, color, religion, ancestry
or national origin, age, disability, marital status, sexual
orientation, gender identity or expression, veteran status, citizenship
status, or other protected group status as defined by law. Sexual
harassment or harassment based on other protected group status as
defined by law is also prohibited.''
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My purpose in providing this testimony is not to comment positively
or negatively on whether the U.S. Senate should enact S. 1584 into law
as sound public policy. Rather, my testimony is provided as a summary
distillation of my legal analysis of certain provisions of S. 1584 as
they apply to private sector employers only.\4\ This analysis is
provided within the context of other Federal non-discrimination in
employment legislation, such as Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. Sec. 2000e et seq. It is also provided to
highlight certain practical uncertainties sure to be faced by employers
attempting to comply with its provisions, and by employees attempting
to understand their rights and obligations under ENDA. As such, this
testimony is provided in the hopes that this information will result in
the clarification of certain of S. 1584 provisions for the benefit of
employees and employers alike. If S. 1584 passes; such clarifications
would minimize confusion and litigation over the meaning of certain
provisions, and enable employers to conform with congressional intent
as expressed through S. 1584's plain language. This would also better
track the protections afforded to other protected groups under title
VII, as amended, and related Federal employment discrimination
statutes.
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\4\ My testimony is limited to S. 1584's application to private
sector employers. It does not specifically address S. 1584's provisions
unique to religious organizations (Section 6), the Armed Forces
(Section 7), or to local, State, or Federal Governments (Section
3(a)(4)((b-d)).
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As drafted, S. 1584 clearly provides the following:
S. 1584 prohibits employers from discriminating against an
individual based on that person's actual or perceived sexual
orientation or gender identity with respect to employment decisions and
other terms, conditions, and privileges of employment.\5\
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\5\ S. 1584, Section 4 (a)(1).
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S. 1584 prohibits employers from discriminating against
employees or applicants by limiting, segregating, or classifying them
on the basis of their actual or perceived sexual orientation or gender
identity in a way that adversely affects them.\6\
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\6\ S. 1584, Section 4(a)(2).
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S. 1584 prohibits employers from discriminating against an
individual based on the perceived or actual sexual orientation or
gender identity of a person with whom that person associates.\7\
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\7\ S. 1584, Section 4(e).
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S. 1584 prohibits employers from retaliating against an
individual based on the individual's opposition to an unlawful
employment practice, or for participating in a charge, investigation,
or hearing.\8\
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\8\ S. 1584, Section 5.
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S. 1584 does not prohibit an employer from enforcing rules
and policies that do not intentionally circumvent its purposes.\9\
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\9\ S. 1584, Section 8(a)(1).
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S. 1584 does not require an employer to treat an unmarried
couple in the same manner as a married couple for employee benefits
purposes.\10\ The term ``married'' as used in S. 1584 is defined in the
Defense of Marriage Act, 1 U.S.C. Sec. 7 et seq.
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\10\ S. 1584 Section 8(b).
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S. 1584 requires that an employee notify their employer if
the employee is undergoing gender transition and requests the use of
shower or dressing areas that do not conflict with the gender to which
the employee is transitioning or has transitioned. An employer may
satisfy the employee's request in one of two ways, through either
providing access to the general shower or dressing areas of the gender
the employee is transitioning to or has transitioned to; or by
providing reasonable access to adequate facilities that are not
inconsistent with that gender.\11\
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\11\ S. 1584, Section 8(a)(3).
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S. 1584 does not require employers to build new or
additional facilities.\12\
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\12\ S. 1584, Section 8(a)(4).
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S. 1584 does not require or permit employers to grant
preferential treatment to an individual because of the individual's
actual or perceived sexual orientation or gender identity.\13\
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\13\ S. 1584, Section 4(f)(1).
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S. 1584 does not require or permit an employer to adopt or
implement a quota on the basis of actual or perceived sexual
orientation or gender identity.\14\
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\14\ S. 1584, Section 4(f)(2).
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S. 1584 allows employers to continue to require an
employee to adhere to reasonable dress and grooming standards compliant
with other applicable laws consistent with the employee's sex at birth,
so long as an employee who has notified their employer that they have
undergone or are undergoing gender transition is allowed the
opportunity to follow the same dress or grooming standards for the
gender to which the employee has transitioned or is transitioning.\15\
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\15\ S. 1584, Section 8(a)(5).
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S. 1584 requires employers to post notices that describe
its provisions.\16\
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\16\ S. 1584, Section 13.
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S. 1584 would be effective 6 months following the date of
its enactment, and it does not apply to conduct occurring prior to its
effective date.\17\
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\17\ S. 1584, Section 17.
However, as drafted, S. 1584 creates the following ambiguity and
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uncertainty:
Whether title VII and ENDA will provide duplicate causes
of action for sex stereotyping;
How ``disparate impact'' claims will be defined under
ENDA;
Whether ENDA was intended to provide more robust remedies
for attorney's fees than those available under title VII;
Determining what triggers an employer's affirmative
obligations with regard to shared facilities and application of its
dressing and grooming standards;
Whether ``certain shared facilities'' include restrooms;
and
Whether employers are required to modify existing
facilities.
III. THE EMPLOYEE NON-DISCRIMINATION ACT OF 2009
A. Existing Protections Against Sex Discrimination in Employment
Existing Federal employment laws prohibit discrimination on the
basis of an individual's sex. Under Federal law it is unlawful to:
Discriminate against a person because she is a female;
\18\
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\18\ See Title VII of the Civil Rights Acts of 1964, 42 U.S.C.
Sec. 2000e et seq. (``Title VII''); see also The Equal Pay Act of 1963,
29 U.S.C. Sec. 206(d) et seq. (the ``EPA'').
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Discriminate against a person because he is a male;
Discriminate against a person because she is pregnant;
\19\
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\19\ See Pregnancy Discrimination Act of 1978, amending title VII
Sec. 2000e(k).
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Discriminate against a person by sexually harassing a
member of the opposite sex based on his or her sex; \20\
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\20\ See Meritor Say. Bank v. Vinson, 477 U.S. 57 (1986).
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Discriminate against a person by sexually harassing a
member of the same sex based on his or her sex; \21\ and
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\21\ Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78
(1998) (male employee alleging he was sexually harassed by his male
supervisor and two male co-workers, none of whom were alleged to be
gay, alleges same-sex sexual harassment which is a violation of title
VII).
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Discriminate against a person due to gender stereotyping
because of his or her sex.\22\
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\22\ Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (female
employee alleging she was denied a promotion as a result of being
described as being ``macho,'' ``overcompensating for being a woman,''
and being given advice to ``take a course at charm school,'' and ``walk
more femininely, talk more femininely, dress more femininely, wear
make-up, have her hair styled, and wear jewelry'' in order to improve
her chances for promotion, stated a cause of action under title VII for
sex discrimination because she did not conform to the stereotypes
associated with being a woman).
No Federal law, however, prohibits employers from discriminating
against employees based on their sexual orientation or gender
identity.\23\ Courts have recognized the difficulty that they often
face in determining under title VII whether certain conduct is
``because of the individual's sex'' as opposed to their sexual
orientation or gender identity. For example, the Seventh Circuit Court
of Appeals has described the various factual settings raised by these
cases as obligating them to ``navigate the tricky legal waters of male-
on-male sex harassment.'' \24\ As a result, some courts have reached
inconsistent results as to whether similar factual situations are
covered by title VII's prohibition against sex discrimination where
there is evidence that the discrimination was ``because of . . . sex.''
For instance, some courts have found that males who behave femininely
or who dress in women's clothing are not protected by title VII, while
others conclude that they are protected by title VII.\25\
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\23\ See, e.g., Hamner v. St. Vincent Hosp. & Health Care Ctr.,
Inc., 224 F.3d 704 (7th Cir. 2000) (the protections of title VII do not
permit claims based on an individual's sexual orientation); Etsitty v.
Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007) (employer did not
violate title VII when it terminated a transgendered employee finding
that discrimination against a transsexual is not ``discrimination
because of sex'').
\24\ See, e.g., Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058,
1061 (7th Cir. 2003) (sexual orientation not covered by title VII).
\25\ Compare Etsitty, 502 F.3d 1215 (10th Cir. 2007) (employer did
not violate title VII when it terminated a transgendered employee,
finding that discrimination against a transsexual is not
``discrimination because of sex'') with Smith v. City of Salem, 378
F.3d 566 (6th Cir. 2004) (concluding a transgender plaintiff could
bring a sex discrimination claim under title VII) and Schroer v.
Billington, 577 F. Supp. 2d 293 (D.C. Cir. 2008) (employer violated
title VII when it rescinded an employment offer upon learning the
employee was transgendered). See, also, Hamm, 332 F.3d at 1066 (Judge
Posner's concurring opinion describing case law in this area as having
``gone off the tracks'' under title VII) and Nichols v. Azteca Rest.
Enters., Inc. and The Legacy of Price Waterhouse v. Hopkins: Does Title
VII Prohibit ``Effeminacy'' Discrimination?, 54 Ala. L. Rev. 193, Fall
2002, and Sex Stereotyping Per Se: Transgender Employees and Title VII,
95 Cal. L. Rev. 561, Apr. 2007.
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A number of jurisdictions have enacted legislation prohibiting
discrimination based on sexual orientation and/or gender identity. To
date, 12 States and the District of Columbia prohibit discrimination
based on gender identity and sexual orientation.\26\ Twenty-one States
and the District of Columbia prohibit discrimination based on sexual
orientation.\27\ The legal obligations imposed by such State laws
differ from State to State.
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\26\ These jurisdictions include California, Colorado, Illinois,
Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island,
Vermont, and Washington, as well as the District of Columbia.
\27\ These jurisdictions include those set forth directly above, as
well as Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Nevada,
New Hampshire, New York, and Wisconsin.
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B. Summary of Federal Legislative Efforts to Enact ENDA
Legislation to prohibit employment discrimination on the basis of
sexual orientation was first introduced in 1994 before the 103rd
Congress.\28\ Since then, legislation has been introduced in almost
every session of Congress to address this topic. For instance, in 2002,
hearings on S. 1284, legislation introduced in the 107th Congress, were
held before this committee. This committee favorably reported the bill
and it was placed on the Senate calendar. In 2007, protections on the
basis of gender identity were included for the first time in a bill
introduced only in the House of Representatives.\29\ Although hearings
were held, the legislation proposed in 2007 did not garner enough
support for passage in the House. Later that year, legislation that
included only a prohibition against discrimination on the basis of
sexual orientation was introduced and passed by the U.S. House of
Representatives.\30\ Similar legislation was not introduced in the
Senate in 2007.
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\28\ Human Rights Campaign, Timeline: The Employment Non-
Discrimination Act, http://www.hrc.org/issues/workplace/5636.htm (last
visited Nov. 3, 2009).
\29\ H.R. 2015.
\30\ H.R. 3685.
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Many of S. 1584's provisions track the language of title VII, the
principal equal employment opportunity statute that employers have used
as their guidepost in developing appropriate policies and practices
regarding non-discrimination in employment. For example, S. 1584
references existing provisions of title VII to define certain terms,
such as employee, employer, and employment agencies; and to reference
specific enforcement powers, procedures, and remedies.\31\
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\31\ See, e.g., S. 1584, Section 3 (Definitions--partial); Section
4 (Employment Discrimination Prohibited--partial); Section 5
(Retaliation Prohibited); Section 10 (Enforcement--partial); and
Section 13 (Posting Notices).
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The language contained in S. 1584 demonstrates the significant
examination and debate that has taken place over the years concerning
the extension of protections in employment to individuals on the basis
of sexual orientation and now, gender identity. Indeed, certain changes
from the current version as compared to S. 1284 and/or the bill
introduced in the House in 2007 (``ENDA 2007''), reflects an
understanding of the need to provide clarity in the workplace to ensure
compliance with the legislation, by carefully describing the
obligations of employers and employees. Some examples of the
clarifications urged in prior hearings and addressed in S. 1584 are set
forth below:
ENDA 2007, Section 5 prohibited retaliation against an
individual for opposing any practice made unlawful by the Act, or
against an individual who made a charge or who provided testimony under
the Act.\32\ Given that the concept of retaliation is a well understood
principle in employment law, legal practitioners suggested that
language track the language already available under existing laws to
minimize confusion and litigation. S. 1584 includes revised retaliation
language that parallels the well established language prohibiting
retaliation contained in title VII.\33\
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\32\ H.R. 2015.
\33\ Compare H.R. 2015, Section (5) with S. 1584, Section 5.
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ENDA 2007, Section 8(a)(1) provided:
IN GENERAL.--Nothing in this Act shall be construed to prohibit a
covered entity from enforcing rules and policies that do not circumvent
the purposes of this Act, if the rules or policies are designed for,
and uniformly applied to, all individuals regardless of actual or
perceived sexual orientation or gender identity.\34\
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\34\ Compare H.R. 2015, section 8(a)(1) with S. 1584, section
8(a)(1).
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Practitioners urged drafters to insert the word ``intentionally''
before the phrase, ``circumvent the purposes of this Act'' to ensure
that section 8(a)(1) would not be used to unintentionally incorporate
concepts of disparate impact claims into ENDA. S. 1584 has been revised
to include the word ``intentionally.''
ENDA 2007 section 17 and S. 1284 section 19 provided that
ENDA would take effect 60 days after the date of enactment. S. 1584
provides for its effective date to be 6 months after the date of
enactment. This 6-month lead time will be particularly helpful to
employers to allow sufficient time to make necessary revisions to their
policies, practices, and procedures. This will also provide adequate
time for employers to train managers, human resource professionals, and
employees to ensure compliance with a new Federal law.
C. S. 1584 Requires Clarification
As described in Section III.B. above, as drafted, S. 1584 has
provided clarity concerning certain provisions in prior House and
Senate bills regarding many of the new obligations ENDA would impose
upon employers. Notwithstanding these clarifications, certain
ambiguities remain that warrant further discussion and analysis. These
ambiguities are described below in two sections. Section 1 addresses
general ENDA points requiring clarification. Section 2 addresses
specific points with regard to the application of specific provisions
of ENDA regarding an employer's facilities and policies to an
employee's gender identity protections, and specifically to individuals
who have undergone or are undergoing gender transition.
1. General Points Requiring Clarification
a. Whether Title VII and ENDA Will Provide Duplicate Causes
of Action for Sex Stereotyping
ENDA is the only Federal legislation, that, if enacted, would
expressly prohibit discrimination or retaliation on the basis of sexual
orientation \35\ and gender identity.\36\ While courts have made clear
that no Federal cause of action exists for discrimination on the basis
of an individual's sexual orientation or gender identity,\37\ as noted
on pages 6-7, supra, some Federal courts have inconsistently extended
title VII protections to factual situations brought on the basis of
sex-stereotyping that more accurately involve claims of sexual
orientation and/or an individual's gender identity.
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\35\ Sexual orientation is defined as ``homosexuality,
heterosexuality, or bisexuality.'' H.R. 3017, Section 3(9).
\36\ Gender identity is defined as ``the gender-related identity,
appearance, or mannerisms or other gender-related characteristics of an
individual, with or without regard to the individual's designated sex
at birth.'' S. 1584, section 3(6).
\37\ Dawson v. Bumble & Bumble, 398 F.3d 211 (2nd Cir. 2004); Bibby
v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3rd Cir. 2001);
Simonton v. Runyon, 232 F.3d 33 (2nd Cir. 2000); Spearman v. Ford Motor
Co., 231 F.3d 1080 (7th Cir. 2000); Hamm, supra, 332 F.3d 1058; Centola
v. Potter, 183 F.Supp.2d 403 (D.Mass. 2002).
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If enacted in its current form, these same factual scenarios would
clearly be actionable under ENDA given its broad definition of gender
identity. What is sex-stereotyping if it is not discrimination based
upon an individual's ``appearance, or mannerisms or other gender-
related characteristics . . . with or without regard to the
individual's designated sex at birth?'' \38\ These concepts are
overlapping, thus, certain factual situations that some courts have
found actionable under title VII would most assuredly also be
actionable under ENDA.
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\38\ S. 1584, Section 3(6); see also Price Waterhouse, 490 U.S.
228.
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Moreover, with regard to the relationship between ENDA and other
laws, section 15 of ENDA specifically provides as follows:
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 any law or regulation of a State or political
subdivision of a state.
Given this language, it is clear that ENDA, as currently drafted,
serves only to add protections on the basis of sexual orientation and
gender identity, and that it does not replace any claims that would
otherwise be actionable under title VII.
Yet, such a reading of the two statutes would lead to the
unintended consequence of a potential dual recovery by a successful
plaintiff filing claims under both title VII and ENDA for the same
alleged wrongful conduct. As such, it is critical that ENDA include
language which makes clear that ENDA is the exclusive Federal remedy
for any alleged conduct on the basis of sexual orientation or gender
identity as those terms have been defined. Accordingly, I urge this
committee to carefully consider the interplay between ENDA and title
VII to ensure that there is not an unintended duplication of remedies
and that congressional intent be made abundantly clear in this regard.
b. Disparate Impact Claims Are Not Available Under S. 1584
Disparate treatment claims are actionable under S. 1584.\39\ S.
1584 prohibits intentional discrimination only.\40\
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\39\ S. 1584, Section 4(g).
\40\ S. 1584, Section 8(a)(1).
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In contrast, disparate impact claims are not available under S.
1584.\41\ In other words, S. 1584 does not provide individuals with a
remedy for alleged discrimination that is based on a rule or policy
that does not intentionally circumvent ENDA, so long as the rules and
policies are applied equally to all individuals regardless of their
sexual orientation or gender identity.
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\41\ Id.
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The most familiar statutory definition of a disparate impact claim
is in title VII.\42\ Thus, to ensure that disparate impact claims are
appropriately defined, and properly excluded from ENDA, a reference to
title VII's statutory definition of a disparate impact claim should be
included in ENDA. The current language leaves some ambiguity. For
example, section 4(g) of ENDA provides as follows: Disparate Impact--
Only disparate treatment claims may be brought under this Act.
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\42\ 42 U.S.C. Sec. 2000e-2(k).
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Thus, while section 4(g) is entitled ``Disparate Impact''--the text
of the provision does not explicitly define disparate impact claims, or
expressly state that they may not be brought under ENDA. Rather, the
provision instead affirmatively states that only disparate treatment
claims may be brought under ENDA. Accordingly, this committee should
also consider adding a provision that explicitly defines disparate
impact claims and excludes disparate impact claims for sexual
orientation and gender identity from ENDA's prohibitions to ensure that
congressional intent is clear as to the claims that are exempted from
S. 1584.
c. The Remedies Available Under S. 1584. Should Parallel
Those Available Under Title VII
S. 1584, Section 10(b)(1) specifically provides that the procedures
and remedies applicable are those set forth in title VII (42 U.S.C.
Sec. 2000e et seq.). Despite this provision, Section 12 of ENDA expands
the remedies with respect to attorney's fees for claims arising under
ENDA beyond those currently available under title VII. Specifically,
section 12 provides as follows with regard to attorney's fees:
Notwithstanding any other provision of this Act, in an action
or administrative proceeding for a violation of this Act, an
entity described in section 10(a) (other than paragraph (4) of
such section), in the discretion of the entity, may allow the
prevailing party, other than the Commission or the United
States, a reasonable attorney's fee (including expert fees) as
part of the costs. The Commission and the United States shall
be liable for the costs to the same extent as a private
person.\43\
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\43\ S. 1584, Section 12. Attorney's Fees (emphasis added).
In contrast, title VII provides as follows with regard to
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attorney's fees:
In any action or proceeding under this subchapter the court,
in its discretion, may allow the prevailing party, other than
the Commission or the United States, a reasonable attorney's
fee (including expert fees) as part of the costs, and the
Commission and the United States shall be liable for costs the
same as a private person.'' \44\
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\44\ Title VII Sec. 2000e-5(k). Attorney's Fees; Liability of
Commission and United States for Costs (emphasis added).
Specifically, S. 1584, Section 12, expands the remedies that would
otherwise be available under title VII by permitting a prevailing party
in an ``administrative proceeding'' to recover a ``reasonable
attorney's fee (including expert fees) as part of the costs.'' Although
it is unclear who is a ``prevailing party'' under ENDA, employees who
receive a finding of substantial evidence from the Equal Employment
Opportunity Commission (``EEOC'') or another administrative agency as
described in section 10(a) may arguably be entitled to attorney's fees.
This is a significant expansion of the remedies available under title
VII.
This inconsistency between ENDA and title VII would mean that a
plaintiff who alleges discrimination on the basis of sexual orientation
or gender identity would be entitled to greater remedies than a
plaintiff who alleges discrimination on the basis of race, color,
religion, sex, or national origin. Moreover, other employment
discrimination statutes, including the ADA, adopt title VII's remedies.
ENDA, in contrast, as discussed, would add new remedies.
Moreover, the very nature of the investigative proceeding at the
administrative agency phase demonstrates why an award of attorney's
fees would not be appropriate. First, EEOC decisions are not considered
``final orders'' subject to appeal, thus an employer would be deprived
of its due process rights to contest any such award. In fact, the EEOC
is not required to provide documented reasons for its decisions.
Accordingly, an employer may not be provided a written basis for the
EEOC's decision. Moreover, information submitted at the EEOC phase is
produced to assist the EEOC in its investigation, and is not subject to
the Federal Rules of Evidence.
The second significant departure contained in ENDA, as compared to
title VII, relates to who is granted the authority and discretion to
grant such awards. As noted above, under ENDA, courts and
administrative agencies, such as the EEOC, are granted the authority to
award attorney's fees. In contrast, title VII appropriately limits the
authority to grant such remedies to the courts. Courts, and not
administrative agencies, are best positioned to decide who is a
``prevailing party'' under the law. Such decisions should be made only
after careful consideration and review of the admissible evidence as
presented by both the plaintiff and the employer.
For these reasons, this committee should undertake a careful
examination of Section 12 of ENDA to ensure that the remedies available
to a plaintiff under ENDA are consistent with provisions under title
VII, consistent with S. 1584's expressed congressional intent.
2. Specific Provisions Requiring Clarification Regarding Gender
Identity
Among other protections, S. 1584 makes it a violation of Federal
law for an employer to ``discriminate against any individual with
respect to the compensation, terms, conditions, or privileges of
employment of the individual, because of such individual's actual or
perceived sexual orientation or gender identity.'' \45\ S. 1584 further
provides as follows:
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\45\ S. 1584, Section 4(a)(1).
[Section 8(a)(3)] CERTAIN SHARED FACILITIES.--Nothing in this
Act shall be construed to establish an unlawful employment
practice based on actual or perceived gender identity due to
the denial of access to shared shower or dressing facilities in
which being seen unclothed is unavoidable, provided that the
employer provides reasonable access to adequate facilities that
are not inconsistent with the employee's gender identity as
established with the employer at the time of employment or upon
notification to the employer that the employee has undergone or
is undergoing gender transition, whichever is later.\46\
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\46\ S. 1584, Section 8(a)(3) (emphasis added).
[Section 8(a)(5)] DRESS AND GROOMING STANDARDS.--Nothing in
this Act shall prohibit an employer from requiring an employee,
during the employee's hours at work, to adhere to reasonable
dress or grooming standards not prohibited by other provisions
of Federal, State, or local law, provided that the employer
permits any employee who has undergone gender transition prior
to the time of employment, and any employee who has notified
the employer that the employee has undergone or is undergoing
gender transition after the time of employment, to adhere to
the same dress or grooming standards for the gender to which
the employee has transitioned or is transitioning.\47\
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\47\ S. 1584, Section 8(a)(5) (emphasis added).
Thus, in addition to prohibiting discrimination in employment on
the basis of gender identity, ENDA places affirmative obligations on
employers. Specifically, employers are required to adjust their
policies, practices, or procedures with regard to ``certain shared
facilities'' and ``dress and grooming standards'' for a subset of
individuals who have either ``undergone'' or who are ``undergoing''
transition to a gender other than their gender at birth.'' \48\ These
affirmative obligations present unique issues in the workplace that
merit further consideration and reflection.
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\48\ Id. at Section 8(a)(3) and 8(a)(5).
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a. What Triggers an Employer's Affirmative Obligation?
The first issue that requires additional consideration relates to
the use of the phrases, ``upon notification'' and ``notified the
employer.'' As an initial matter, it is unclear whether these similar,
though different, phrases mean the same thing. For the sake of clarity,
one phrase should be selected and used consistently throughout to avoid
confusion.
Second, the terms ``notification'' and ``notified'' are vague terms
that should be modified to clarify what the employee is required to do
before an employer's obligations are triggered. For instance, does the
employee have to notify the employer in writing, or does a verbal
conversation satisfy the employee's obligation to notify? Is the
employee's own statement sufficient, or is it permissible for an
employer to request confirmation from a third-party professional before
it is required to amend its policies, procedures, or practices for the
requesting individual? Are the employer's obligations to modify its
existing policies triggered immediately upon notification? And if not,
how soon is the employer required to act? Should the employee be
required to provide sufficient lead time to allow the employer the
opportunity to make adjustments as appropriate? And if so, how much
time is necessary? These questions are not currently addressed in S.
1584.
b. Who Is Covered by Sections 8(a)(3) and 8(a)(5)?
Sections 8(a)(3) and 8(a)(5) are applicable to only a subset of
employees that are otherwise covered under ENDA. Specifically, these
sections are applicable to those individuals that have ``undergone'' or
who are ``undergoing gender transition.'' Absent from ENDA, however, is
a definition of the phrases ``undergone,'' ``undergoing,'' or ``gender
transition.'' These undefined phrases are particularly problematic
given that ``gender transition'' is a broad term used to describe a
combination of social, medical, and legal steps that an individual may,
or may not, choose to undergo in their decision to define their gender
identity.\49\
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\49\ Transgender Visibility Guide: A Note on Transitioning,
available at http://www.hrc.org/issues/transgender/13105.htm. (last
viewed Sept. 21, 2009); see also The Transsexual Person in Your Life,
Responses To Some Frequently Asked Questions/Frequently Held Concerns,
available at http://www.tsfaq.info/. (last viewed Sept. 21, 2009).
---------------------------------------------------------------------------
For instance, social steps in the process might include asking to
be referred to by a different name or pronouns (i.e., ``she'' instead
of ``he'' or vice versa).\50\ Such steps may also involve an employee
using clothing or accessories traditionally worn by individuals of the
sex and/or gender the employee identifies with, or taking on mannerisms
associated with a particular gender.\51\
---------------------------------------------------------------------------
\50\ Id.
\51\ Id.
---------------------------------------------------------------------------
Certain employees may also choose to take medical steps to further
conform to their core gender identity. Such medical interventions may
include hormonal therapies and/or surgery to further modify their
physical appearance or attributes.\52\ Finally, transitioning
individuals may utilize courts or other agencies to achieve legal
recognition of their new name and/or gender.\53\ Thus, the term
``gender transition'' implicates a wide range of steps that employees
may be said to have ``undergone'' or be ``undergoing.''
---------------------------------------------------------------------------
\52\ Id.
\53\ Id.
---------------------------------------------------------------------------
As previously stated, one of the social steps in the gender
transition process may include the use of clothing, make-up, or
accessories commonly associated with an individual's true identity
rather than with his or her gender at birth. As currently written,
``undergoing'' may be so broadly interpreted as to cover any employee
who presents in a gender non-conforming manner on a single day.
Such distinctions on issues that most employers may not fully
comprehend may be cause for significant concern and confusion in the
employer community. Thus, defining more specifically those individuals
who can make requests under sections 8(a)(3) and 8(a)(5) should be
clearly defined in ENDA.
c. Do ``Certain Shared Facilities'' Include Restrooms?
Section 8(a)(3) implicates a common, yet controversial, issue
related to transitioning employees. Specifically, which ``certain
shared facilities'' should transitioning employees use, and when is it
appropriate for these employees to begin using shared facilities
designated for members of the ``opposite sex.'' Though entitled
``Certain Shared Facilities,'' Section 8(a)(3) provides only limited
guidance on this issue. As written, it applies only to ``shared shower
or dressing facilities in which being seen unclothed is unavoidable.''
\54\ In such shared facilities, an employer who has been notified that
an employee has or is undergoing gender transition has the following
two options: (1) to allow the transitioning employee access to the
shared facilities designated for the gender to which the individual is
transitioning; or (2) to provide the transitioning employee with
``reasonable access to adequate facilities'' that are not inconsistent
with the gender to which they are transitioning.
---------------------------------------------------------------------------
\54\ S. 1584, section 8(a)(3).
---------------------------------------------------------------------------
Glaringly absent from ENDA, however, is guidance for employers with
respect to bathrooms or restrooms. Indeed, far more prevalent in the
workplace than ``shared shower or dressing facilities in which being
seen unclothed is unavoidable'' are restrooms. The same privacy issues
that give rise to the use of ``shared showers or dressing facilities''
are applicable to some bathrooms where being seen unclothed is also
unavoidable. Employers should be provided the same flexibility that
H.R. 3016 provides employers with respect to shared shower or dressing
facilities by expressly permitting employers to decide which restrooms
transitioning employees will have access to so long as they are
permitted ``reasonable access to adequate'' restrooms.
Moreover, because the definition of ``gender identity'' in S. 1584
is broader than the subgroup of individuals who have or who are
undergoing gender transition, it should also be clarified to expressly
state whether an employer has any obligation to allow anyone other than
transgendered employees access to shared facilities that are designated
for use by only members of one particular sex. Given that restroom
accommodations may be perhaps one of the most controversial issues
employers will be required to face if ENDA is enacted in its current
form, congressional guidance on this point would be helpful to
employers who will be required to implement policies, practices, and
procedures consistent with ENDA.
d. Are Employers Required to Modify Existing Facilities
Under ENDA?
Section 8(a)(4) of ENDA provides as follows:
ADDITIONAL FACILITIES NOT REQUIRED.--Nothing in this Act
shall be construed to require the construction of new or
additional facilities.\55\
---------------------------------------------------------------------------
\55\ H.R. 3917, Section 8(a)(4).
Given the language in the text, it is clear that ENDA does not
require an employer to construct new or additional facilities. Left
unanswered, however, is whether employers are nonetheless required to
modify existing facilities. Clarification concerning this issue is
critical so as to have certainty with respect to the scope of an
employer's obligations under ENDA. \56\
---------------------------------------------------------------------------
\56\ If ENDA were clarified to require an employer to undertake
such affirmative obligations with respect to modification of existing
facilities, it is critical to also provide guidance on when those
obligations are triggered and when they must be completed.
---------------------------------------------------------------------------
IV. CONCLUSION
In conclusion, I believe that the issues raised herein should be
considered and addressed as the committee considers the Employment Non-
Discrimination Act of 2009. Chairman Harkin, Ranking Member Enzi, and
members of the committee, I thank you for the opportunity to share my
thoughts with you today. Please do not hesitate to contact me if I can
be of further assistance in suggesting ways in which to improve ENDA's
language to ensure that it meets congressional objectives.
The Chairman. Thank you, Ms. Olson.
Again, I thank all of you for being here today.
I'll just start my first 5-minute round, and then we can
continue on.
I would like to get right to the issue basically raised by
Mr. Parshall. I would direct this, again, to Professor Norton.
ENDA has a very broad religious exemption based on that that
already exists in title VII. Yet we've heard criticism that
this bill is an attack on religious liberties, especially the
ability of religious organizations to object to what they
consider immoral behavior. So, I guess I'd liked to have any
response that you might have, that--if you heard Mr. Parshall's
testimony--(a) Do you think religious organizations are at risk
under this bill? Do you believe that the Civil Rights Act and
ENDA strike a balance where religious institutions should be
able to make employment decisions consistent with their
religious beliefs, but nonreligious employers are not exempt?
Is it appropriate that private employers whose primary purpose
and character is not religious should not be exempted?
So, again, I just--I throw those out, but I just want your
response on the religious exemption and how ENDA might impact
that.
Ms. Norton. Certainly, Chairman Harkin.
In short, I do believe that ENDA, as currently drafted,
strikes a clear and appropriate balance between the interests
of religious institutions and the equal employment opportunity
rights of all Americans. Let me make several points.
First, let me emphasize that the language of the bill is
crystal clear. This is section 6, ``This Act''--meaning ENDA--
``This Act shall not apply''--this Act, which would prohibit
sexual orientation discrimination and gender identity
discrimination--``shall not apply''--period--to a, ``a
religious corporation or association, educational institution,
or society that is exempt from title VII's religious
discrimination provision.''
So, in other words, if an institution qualifies for the
title VII exemption--under current law, that means that an
organization may discriminate on the basis of religion--it's
also clear that, under this bill, that organization is also
free from the prohibition on sexual orientation and gender
identity discrimination that would be created by this act.
Second, the U.S. Supreme Court has held that a 1987
decision in Amos--that the title VII religious exemption does
strike an appropriate constitutional balance between free
exercise and establishment-clause violations as applied to the
nonprofit activities of religious institution. That Court said
that title VII, as drafted, does exempt religious institutions,
in that, as applied to their nonprofit activities, religious or
otherwise, that is constitutional. The Court declined to rule
whether a broader exemption would pass constitutional scrutiny.
In fact, several members of the Court concurred separately to
emphasize their concern that a broader exemption--for example,
an exemption that relieved religious institutions' for-profit
activities from compliance with title VII--they concurred
separately that to emphasize that a broader exemption of that
nature may well run afoul of establishment-clause principles.
So, the Court has, in fact, endorsed the balance struck by the
title VII exemptions.
Third, we have a long history--a 45-year history--of courts
interpreting the scope of the religious institution exemptions
under title VII. The rule is--that is applied in that--in those
cases is clear across all circuits. Courts determine whether or
not the institution is primarily religious or primarily secular
in function and purpose. In many cases, this is an easy call.
If the institution is a church, a parochial school, a religious
mission, a house of worship, clearly it's a religious
institution that qualifies for the exemption under title VII
and would qualify for the exemption under ENDA, as well.
Different facts will lead to different outcomes. Different
facts that suggest a different religious or secular character
will lead to different outcomes. That's a single rule applied
to different facts that, understandably, would get you to
different outcomes.
In the small universe of cases in which institutions have
been denied the exemption, I would characterize them as falling
into one or two categories. Again, this is a small universe of
characters.
First, a for-profit employer producing a secular product
will not be found to be a religious institution. It's not
primarily religious in function and purpose.
Second, an institution that was founded with a religious
mission--perhaps hundreds of years ago--but has changed in
operation over time and is now, in fact, secular in operation
may no longer qualify for the religious institution exemption.
Courts look at its operation at the time of the employment
decision in question.
Mr. Parshall. Senator, may I respond just very quickly to
the----
The Chairman. Mr. Parshall.
Mr. Parshall. I appreciate Professor Norton's comments. And
she is right, I agree, absolutely, that the language of section
6 is crystal clear. Its meaning, however, is hopelessly complex
and, I think, inscrutable. Here's the reason why. Section 6
simply says, ``If you're covered under title VII, you are
covered under ENDA as a religious organization.''
I think it seems to be an effortless analysis. The problem
is--let's look at title VII. Title VII language says that
religious organizations are exempt regarding employment
decisions of persons, ``of a particular religion,'' to perform
work connected with the carrying on of the organization's
activities. ``Of a particular religion.'' The courts have
indicated, as I've cited in my testimony, that what that means
is, if the employer's religious views conflict with the
employee's religious views, they get a pass. Only as to that.
Sex and gender discrimination, they don't get a pass.
There is an exception, called the ``ministerial
exception,'' but that only applies to a rabbi in a synagogue, a
Imam in a house of worship under Islam, a Christian pastor in a
church, as an example. But, 99 percent of the problems are not
dealing with the head clergy person in an organization.
Now, if we have a person who is non-hired because of sexual
orientation, the court will then ask, ``Well, is this because
of the religion of the employee?'' The answer would have to be
``no.'' As a result, title VII's being incorporated into
section 6 is going to be a meaningless exercise and will
provide no protection at all.
Second, Professor Norton mentioned the Amos case, and it
was a significant case, and they did indicate that it was
limited to nonprofit organizations. In that case, it was a
religion decision made by the Mormons about the religious
viewpoint of a certain person. But, my concern is that we have
many, many broadcasters, as an example, who are for-profit.
Now, most of our broadcasters are nonprofit, tax-exempt
organizations, religious organizations, but many are religious
Christians in their charter, their mission, their
characterization, and yet, they are for-profit, in terms of
taking advertising dollars. Those, it is my firm belief, will
get absolutely no protection under ENDA, regardless of how you
interpret section 6.
And the last point that Professor Norton made about the
scope of past decisions being sort of fact-specific. That is
true, courts look at them as a case-by-case basis. But, when I
look at, for instance, the fact that a child welfare society in
a U.S. District Court in Virginia, an orphanage, was--clearly
Christian in its mission, Christian in its nature of its
operations, and yet it had a head of the organization that, for
a short period of time, started steering toward more secular
goals, then they returned to their original Christian mission.
They were denied an exemption. A thoroughly Christian small
business that employed Christians at bible studies and wanted
to integrate Christianity in all aspects of the workplace, that
was denied exemption under title VII.
So, those are some of the complicated problems that I
foresee in getting any meaningful protection for religious
groups under title VII being incorporated into ENDA.
The Chairman. I've used up more than my 5-minutes.
I ask the indulgence of my fellow Senators, if I might get
a response on that.
I'd like to, Ms. Norton--but, Attorney General Madigan,
you've had experience in Illinois under this. You've heard the
exchange. Do you think there's adequate protections for bona
fide religious organizations and churches under ENDA?
Ms. Madigan. Let me tell you the experience of the State of
Illinois, in terms of the amendments to our Human Rights Act,
which, as you all know, includes sexual orientation and gender
identity. We have seen no more than a handful of complaints
against religious institutions. In fact, we haven't seen any
for the last 2 fiscal years, so the last one would have been
prior to July 1, 2008.
I will not be as eloquent, nor will I--I don't practice in
this area; I'm mainly defending the State of Illinois--as
Professor Norton was able to explain. So, I think that, you
know, in all legal cases there are two sides to a story. The
courts throughout this country, as has been noted, have had
slightly less than 45 years--I think the current language in
that section is from 1972; so, since 1972 they have been
interpreting that language, and have done a good job of it,
creating, again, as Professor Norton said, a standard that is
applicable across the circuits. So, I do believe, No. 1, based
on the experience in Illinois, this has not been an issue; and,
No. 2, that the courts will definitely understand the
implication of importing the title VII standard.
The Chairman. Ms. Norton, do we know--I probably should ask
Senator Franken this--has there been any problems in the States
that have had such a law on their books for a long time? Now,
Iowa's only had it on its books for a couple of years, but some
States go back to the 1990s. What's been the experience in
these States, dealing with the religious exemption?
Ms. Norton. Right. I think it--backing up Attorney General
Madigan's experience, as well, I think there's been very, very
little experience. There's very few complaints of any type
being filed under the statute. In Colorado, for example, and in
most States, you see only dozens of complaints filed at all
under this statute in any given year. Larger States, like New
York and California, maybe a few hundred. But, a very small
fraction of the total human rights caseload in those States.
Actually, I can't give you an example of a case involving a
religious institution as a defendant; not to say that they
don't exist, but just to say that the sample size is very
small.
The Chairman. Thank you very much. I've used double my
amount of time.
Senator Merkley.
Senator Merkley. Thank you very much, Mr. Chair.
Officer Carney, thank you for your terrific testimony. You
note that our Constitution says that, ``All men are created
equal, endowed by their creator, with certain inalienable
rights, that among these are life, liberty, and the pursuit of
happiness.'' Do you find, from your experience, that equal
opportunity at your job is integral to life, liberty, and the
pursuit of happiness?
Mr. Carney. Well, the only thing I can do is tell you from
experience that the first 30 years of my life were hell. I hid,
and I tormented myself over my sexual orientation, my identity
issue. Since then, since I filed my complaint and it became
public knowledge that I was gay, everything in my life has
gotten better. I truly feel that I am much healthier, I take
care of myself, and I feel that--and hope that I'm a better
employee as a result of that.
So, I really feel strongly that having somebody out in the
workforce is tremendously an asset to--and hopefully our
department, as well as others.
Senator Merkley. In your testimony, you described how you
were denied re-application three times, spent 2\1/2\ years
appealing that. The Commission Against Discrimination found
that you had been discriminated against, and you were restored.
And since then, you've been a police academy instructor, a
detective in the Youth Assessment Center, detective in the
Narcotics Division, and an aide to the chief of police. Would
any of that have been possible if you lived in a State that did
not have protections against discrimination?
Mr. Carney. No, sir.
Senator Merkley. Thank goodness you were in a State that
did. It's too bad it took so long and interrupted your life.
This makes me want to turn to Professor Norton and some of
your testimony. The court found that David Martin was subject
to a constant stream of degrading sexual comments, lewd
conduct, posting of profane graffiti, other forms of
harassment, but his case was dismissed because, ``The torment
endured by Martin, as reprehensible as it is, relates to his
sexual orientation, and is thus unremedied by the law.'' So,
harassment of gay, lesbian, and transgender people are legal in
States that do not have protection against discrimination.
Ms. Norton. That's correct, Senator.
Senator Merkley. That is unbelievable to me.
To go on, Michael Vickers, who befriended a gay colleague,
was then the subject of sexual slurs, derogatory remarks,
irritant chemicals in his food and personal property, engaged
in a long list of harassment. And the court found,
``While the harassment alleged by Vickers reflects
conduct that is socially unacceptable and repugnant to
workplace standards of proper treatment and civility,
his claim does not fit within the probations of the
law.''
In Kentucky, this intense harassment was legal because
Vickers was gay.
Ms. Norton. That's correct, sir.
Senator Merkley. And I could go on. The next example cited
that the court found that, ``No doubt the conduct engaged,''--
this is regarding Dwayne Simonton--``engaged in Simonton's co-
workers is morally reprehensible whenever and in whatever
context it occurs, particularly in the modern workplace.'' But,
the court went on to reject his claim, saying, ``The law is
well-suited, does not protect harassment or discrimination.''
If we pass the Employment Non-Discrimination Act, will this
``morally reprehensible''--as described by one court--
``repugnant behavior,'' this direct harassment, making people
extraordinarily miserable in the workplace, will it finally be
illegal for the GLBT community to be subject to that kind of
treatment?
Ms. Norton. Yes, sir, it will make that treatment illegal.
Senator Merkley. Thank you. As you can tell, I think that
it's about time that we protect all American citizens, giving
them both the chance to have a job that they would like to
apply for--without discrimination hiring--and certainly against
this repugnant, unacceptable, harassment in the workplace.
Attorney General Madigan, we've had the experience in
Oregon for a year and a half now; so, a shorter period of time.
We've had a modest number of complaints. The press calls it--
and the headline was, ``Gay Discrimination Complaints, Few
Under Oregon Law. An Oregon law protecting gays from
discrimination, housing, work has produced a mere trickle of
complaints.'' It goes on to analyze those complaints. And finds
that basically, the law is doing what it should. Conduct has
changed as a result of the law.
And I believe, in your testimony, you said you had more
complaints about GLBT treatment in the workplace--I think it
was 10 percent versus 2 to 4 percent now--and you've seen the
impact. People recognize, ``Oh, I can't harass people in the
workplace like I did before,'' and there's actually fewer
complaints now than previously.
Ms. Madigan. The complaint levels have--initially they were
low, they went up in the second year, down in the third,
they're up in the fourth. I think that happens for a number of
reasons.
No. 1, initially people are not aware of the law. Our
Department of Human Rights has been very proactive in educating
people and employers about the laws. Employers, as I mentioned,
have adopted this into their policies, are doing training
programs on it. So, there's a greater awareness.
But, nonetheless, when you look at the total number of
complaints, they're still relatively small. If I average it
out, I would say no more than 100 a year, under sexual
orientation and gender identity, that have been filed.
Senator Merkley. Chair, I see I'm over my time, but I had
one more question to pursue, here. Thank you.
You also note that charges filed with IDHR show that
religious--and I assume it's Illinois Department of Human
Rights?
Ms. Madigan. Correct.
Senator Merkley. Show that religious institutions have not
been impacted by the 2006 amendments to the Illinois Human
Rights Act. Can you expand on that? You don't see a stream of
complaints from religious institutions saying that they're
being unfairly constrained?
Ms. Madigan. We do not. In fact, when we went to amend our
Human Rights Act in 2005, there was significant support among
people in the religious communities of our State for this
amendment to include sexual orientation and gender identity. In
addition, as my testimony indicates, no more than a handful of
complaints. We have none since fiscal year 2009, so that would
have been July 1, 2008.
Senator Merkley. It's probably appropriate to note here
that we have received a letter from the Union of Orthodox
Jewish Congregations of America, from the U.S. Conference of
Catholic Bishops, and the General Conference of Seventh-Day
Adventists, that I'd like to have entered into the record.
[The information referred to follows:]
General Conference--Seventh Day Adventist Church,
Silver Spring, MD 20904,
Union of Orthodox Jewish Congregations of America,
Washington, DC 20001,
U.S. Conference of Catholic Bishops,
Washington, DC 20017,
October 18, 2007.
Hon. George Miller, Chairman,
Hon. Howard ``Buck'' McKeon, Ranking Member,
House Committee on Education and Labor,
U.S. House of Representatives,
Washington, DC 20515.
Dear Chairman Miller and Ranking Member McKeon: While we have no
position on the underlying legislation, we write to you on behalf of
our respective organizations--the General Conference of Seventh-Day
Adventists, the Union of Orthodox Jewish Congregations of America, and
the United States Conference of Catholic Bishops--to express our
support for the religious exemption language found in section 6 and
section 3(a)(8) of H.R. 3685, the Employment Non-discrimination Act of
2007 (ENDA), being considered by the committee today.
As was the case in versions of ENDA that were introduced in
previous congresses, the language in section 6 of H.R. 3685 contains a
single sentence exempting religious organizations from its provisions.
Also as in previous congresses, H.R. 3685 defines religious
organization in a manner that is consistent with the language found in
Title VII of the Civil Rights Act of 1964. We believe this language
provides an indispensable protection for the free exercise rights of
religious organizations and strongly support its inclusion in ENDA.
We understand that an amendment may be offered in the committee's
markup that would alter the carefully calibrated language contained in
section 6 and section 3(a)(8) of H.R. 3685. Adoption of such an
amendment would present our organizations with grave concerns about
unacceptable government infringement upon the freedoms guaranteed to
religious organizations by the U.S. Constitution, as well as by Supreme
Court and statutory precedents. We would oppose any such amendment.
By including language that is consistent with the religious
exemption language from previous congresses, we believe that the
religious liberties guaranteed by the U.S. Constitution, Supreme Court
jurisprudence, and existing Federal law are better protected. We urge
you to oppose any amendment that would upset this tradition.
Sincerely,
Nathan J. Diament, Director of Public Policy,
Union of Orthodox Jewish Congregations of America.
Anthony Picarello, General Counsel,
U.S. Conference of Catholic Bishops.
James Standish, Legislative Director,
General Conference of Seventh-Day Adventists.
Senator Merkley. They have written to,
``express our support for the religious-exemption
language found in section 6, section 3(a)(8) of H.R.
3685, the Employment Non-Discrimination Act, being
considered by the committee today.''
I'll tell you, we had an intense discussion. Many of the
types of detailed concerns, ``the sky is falling'' concerns,
expressed by Mr. Parshall were part of the conversation we had
in Oregon 2 years ago. We worked very hard to bring a lot of
common sense to creating that boundary of fairness to religious
institutions. We have had, to my knowledge, exactly zero
complaints following implementation of this law. It sounds like
that parallels your experience over a greater period of time in
Illinois.
Ms. Madigan. It does, Senator. Again, this is a necessary
and useful law to protect people--all people in the State of
Illinois--and certainly it is long overdue that these
protections exist across the country.
Senator Merkley. I'm out of time. But, thank you, Nike----
[Laughter.]
Senator Merkley [continuing]. So much for your leadership.
Thank you, to Diane Rosenbaum. She's a State senator from
Oregon who was absolutely the heart of our effort to create
fairness in the workplace, and I appreciate that she was able
to come this morning.
Thank you.
The Chairman. We welcome you here. Thank you very much.
Senator Franken.
Senator Franken. Mr. Chairman, thank you.
Mr. Carney, I heard you bring up, ``life, liberty, and the
pursuit of happiness.''
Mr. Carney. Yes, sir.
Senator Franken. It seems like that's a pretty basic
principle here----
Mr. Carney. One would think so, sir.
Senator Franken [continuing]. In this country.
Mr. Carney. Yes.
Senator Franken. Ms. Nguyen, you brought up one of the
credos of Nike--and by the way, I've been to the campus there
in Beaverton; it is unbelievable. And all these credos that you
have there seem to be working pretty good. And yours is,
``bringing their full selves to work.'' Is that right? How did
you put that?
Ms. Nguyen. ``An inclusive environment where people are
bringing their full selves to work,'' yes.
Senator Franken. OK.
Now, it seems like the result of not having this law is
that people can't bring their full selves to work----
Ms. Nguyen. Right.
Senator Franken [continuing]. If they're fearing, ``I could
get fired, I could get harassed, I could be driven out of my
job by an unfriendly environment if I let everybody know who I
was.'' So, you feel like you get productivity from people when
they bring their full selves to work.
Ms. Nguyen. Yes. That's absolutely correct.
Senator Franken. But, it seems like not having ENDA means
that people aren't able to bring their full selves to work, and
I just wonder about the loss in productivity, and what you see
in the gain in productivity at Nike from people being able to
bring their full selves to work.
Ms. Nguyen. That's a great question.
For us, the heart of Nike is around innovation. We firmly
believe, as I mentioned, that diversity is one of those key
levers that keeps Nike on the leading edge of innovation. If we
are not creating an environment that is inclusive and
celebrates the diversity and is able to tap into all the
diverse perspectives that our wealth of talent brings, then we
suffer--our innovation suffers, our creativity suffers, and our
morale suffers.
Senator Franken. So, in a way, what we're doing, by not
letting people be themselves in the workplace, is suppressing
productivity.
Ms. Nguyen. Yes. People are not going to be giving their
all, essentially, or playing at the top of their game in the
workplace----
Senator Franken. OK.
Ms. Nguyen [continuing]. If they're not comfortable with
being who they are in the workplace.
Senator Franken. Professor Norton, I want to ask you a
question. Mr. Parshall, I want you to be able to respond to it.
So, I might go over my time, but not anywhere near----
[Laughter.]
Senator Franken [continuing]. As much as Senator Merkley.
But, I'm not a lawyer. I'm one of the few members of this
committee that isn't, but I did some research, and I discovered
that most Americans aren't----
[Laughter.]
Senator Franken [continuing]. So, I'm representing them.
But, as I was hearing Mr. Parshall talk about title VII and
the religious exemption, which you heard all these different
religious groups in Oregon commended and signed on to.
Senator Merkley. These are national groups.
Senator Franken. Oh, those are national groups, sorry.
It seemed like he was making a kind of distinction. He was
saying that the exemption is built around what the person is
being discriminated against--like in title VII, which is race
or gender--as opposed to defining the kind of organization
that's exempt. I want you to speak to this, Mr. Parshall. It
seems like you're kind of making a false distinction here, that
title VII was basically defining what kind of organization and
what kinds of organizations are exempt, and not really defining
what the thing you can't be prejudiced against is. You
understand what I'm saying? Because I'm not saying it so great.
[Laughter.]
Ms. Norton. I understand you very well, Senator Franken.
Thank you for the question.
I, respectfully but strongly, disagree with Mr. Parshall's
description of the religious exemption and how it works.
Title VII, you're exactly right, defines a range of
institutions--institutions that are exempt from title VII's
prohibition on religious discrimination. There are two
provisions.
One exempts religious corporations, associations,
educational institutions, and societies. If you fall into that
category of institutions, you may discriminate on the basis of
religion without running afoul of title VII.
Title VII has another exemption for educational
institutions that don't fall into that earlier exemption, but
nonetheless are, in whole or in substantial part, owned,
controlled, managed, or operated by a religious institution, or
that had a curriculum that's directed toward the propagation of
a religion. Again, if you fall in that category of
institutions, you are relieved from title VII's prohibition on
religious discrimination.
Now, if you fall into either of those categories, you must
still comply with the remainder of title VII, which means you
cannot discriminate on the basis of race, color, sex, or
national origin.
ENDA very clearly--section 6 is very clear--that, ``This
Act shall not apply''--this Act, which prohibits sexual
orientation and gender identity discrimination--``shall not
apply to those institutions that are exempt under title VII.''
So, once this bill becomes law, if you fall into one of the
religious institution exemptions, you are relieved from title
VII's prohibition on religious discrimination, and you are
relieved from ENDA's prohibition on sexual orientation and
gender identity discrimination, period.
Senator Franken. OK.
Mr. Parshall, I want you to respond to that.
Mr. Chairman, I really--I'm sorry about this, but----
I'd like you to respond to that Mr. Parshall. I am over my
time. I wouldn't mind if you had a chance to respond to the
response. OK?
[Laughter.]
Mr. Parshall. Thank you for your fundamental fairness,
Senator, I appreciate that.
Senator Franken. Fundamental fairness would have me
allowing you to respond to her response to your response. And
I'm not going to do that.
[Laughter.]
Mr. Parshall. Sometimes we lawyers enjoy a refreshing
nonlawyer's perspective in getting down to the bottom of the
bottom line. I think you've just touched on it. What does title
VII really exempt? You've hit on part of it, but not all of it.
No. 1, the nature of the organization--and it has a list--
religious corporations, institutions, educational, and so
forth--that describes the nature of the organization. That's
one inquiry. But, there's a second prong that the courts apply,
and that is, No. 1, are you a religious organization falling
within title VII's language, but, No. 2, what is the focus of
your conduct? The case--cases have said, ``If your focus is to
discriminate based on race or sex or gender, the exemption
doesn't apply, but if it's directed to the faith, or lack of,
of the employee, then we have a collision between faith and
faith, and that's where the exemption kicks in.''
Now, the problem is, if a homosexual or lesbian or
transgender person applies at a Christian bookstore, as an
example, and they said, ``We're not going to hire you.'' Let's
say they say, ``We aren't hiring you because of your sexual
orientation,'' the courts will look at the language--and I'm
just going to quote one case, that is a Third Circuit case--
Third Circuit Court of Appeals--that interprets the religious
exemption under title VII this way, ``The statute exempts
religious entities and educational organizations from its
nondiscrimination mandate to the extent that an employment
decision''--and this is the important part--``is based on the
individual's''--that is, the employee or prospective
employee's--``religious preferences.'' So, if a person of
sexual orientation that doesn't happen to coincide with the
religious beliefs of a Christian bookstore or a Christian
publisher, says, ``Well, I'm a Lutheran. This isn't a Lutheran
publishing company. No problem. You don't have an exemption.''
But, if he says, ``I'm an atheist and a transgender,'' then the
Christian publishing might have an exemption. That's part of
the confusion that I think occurs by section 6 just simply
importing the whole title VII scheme.
Senator Franken. Yes. I think I understand that. Can I just
have a brief response to that?
Ms. Norton. Yes, sir. Again, I respectfully but strongly
disagree with Mr. Parshall's characterization. Title VII first
asks, ``Do you fall into one of these institutional
categories?'' If so, you're relieved from the prohibition on
religious discrimination. If so, section 6 of ENDA is
completely clear that you're also relieved of the prohibition
on discrimination on the basis of sexual orientation and gender
identity.
Senator Franken. But, he's saying that religious
discrimination is discriminating against the person's religious
beliefs, as opposed to discriminating against their gender or
sexual orientation or their gender identification.
Ms. Norton. Sure, those are different things. But, the
significance of the exemption in ENDA is that if, for example--
we'll just use the example he used--if you are a Lutheran
religious institution--actually, I don't want to pick on
Lutherans; there's many in Minnesota and Iowa and elsewhere.
Senator Franken. That's right. They're terrific.
[Laughter.]
Ms. Norton. If you're--I'm Lutheran--if you're a religious
institution within the meaning of title VII, you are free from
ENDA. So, it's OK if you say, ``I'm discriminating against him
or her because''--it's OK as a legal standard, not as a moral
standard.
Senator Franken [I have actually gone further over my time
than Senator Merkley.
Senator Merkley. Far over.
Senator Franken. Yes.
Senator Merkley. Far over.
[Laughter.]
Senator Franken. OK, thank you, Senator. That just took
more time, didn't it?
[Laughter.]
But, why don't you guys talk between yourselves and settle
this and let us know how it came out.
[Laughter.]
Thank you, Mr. Chairman.
The Chairman. I would say--Do you have a response to that,
Mr. Parshall?
Mr. Parshall. Well, I do. I'll give you an example. This is
a case--this is a recent case. I cited it in my written
testimony. It's at the bottom of page 4 of my testimony--
written testimony, page 5. Prowel versus Wise Business Forms,
this is an August 28th, 2009, just but 2 months fresh out of
the docket, from the Third Circuit Court of Appeals. This is a
case where a person was clearly a person whose sexual
orientation didn't meet the agreement of some people who are
religious people in that small business. They directed
religious comments, the plaintiff felt, in a harassing way. One
of the claims this employee made was gender discrimination and
also religious discrimination. Now, again, we don't have ENDA,
so the court had to face whether or not there's the sex
stereotyping theory that can be used. By the way, by my count,
four Federal Circuits--it would be the First Circuit, Third
Circuit, Sixth Circuit, the Ninth Circuit of the Federal
Circuits--have adopted the theory that if you're a homosexual
and you're harassed on the job because you don't meet the
gender stereotype of these heterosexuals that don't like you,
you can file a claim without ENDA. But, in the course of that--
in that decision, the Wise Business Forms decision, 2 months
old, said that the nature of the discrimination against this
individual really wasn't religious, even though he cited
examples of it being motivated by the religious positions of
employees and the employer allowed it to happen. They said,
basically, this is gender--this is sex or gender type
discrimination. I think that's what the courts are going to
say. They've already said, in a number of cases, that the
situation of a person who is discriminated based on sexual
orientation is very similar to a gender discrimination case
that we've already had under title VII. So, the proclivity of
the court is, I think, clear, they're going to probably orient
their decision and say, ``It's very much like sex
discrimination,'' which religious groups don't have a pass on,
``or race discrimination,'' where we don't have a pass on,
rather than say it's really having to do with the faith of the
employee.
Ms. Norton. Can I make--I'll make one last pass. With all
due respect, Mr. Parshall's creating a problem that does not
exist. The effect of the title VII religious exemption is that
if a plaintiff files a claim of religious discrimination
against an organization that falls within one of those
exemptions, that plaintiff will lose on a motion to dismiss. We
will never get to the merits. The courts will say, ``Exempt
under title VII.'' The effect of ENDA, once it becomes an act,
is, if a plaintiff files a sexual orientation or gender
identity discrimination claim against an institution that falls
within that exemption, that plaintiff will lose on a motion to
dismiss. We will not get to the merits. Those institutions do
not have to comply with ENDA's prohibitions on sexual
orientation and gender identity discrimination.
The Chairman. But, I assume that the court will look at the
essence of the fundamental structure of the entity that the
complaint is being filed against.
Ms. Norton. To determine whether the exemption applies,
that's true, yes.
The Chairman. Sure. To get back to facts, what are the
facts in the case. No legislation that we ever pass here can
cover every perceivable factual situation that might arise in
the future. So, that's why--sure, you can bring up a fact
situation and a fact that maybe we hadn't anticipated. But,
again, we can't anticipate every factual situation that might
come up. All we can do is give the broad guidance to courts as
to exactly what we meant in this, with both the legislation as
we frame it and the report language that encompasses it.
I've had that same experience with the Americans with
Disabilities Act for all these years, for crying out loud. We
had to come back, as you know, last year, and pass the ADA Act
amendments to instruct that court over there as to what we
meant. We did it with a bipartisan majority. So, this is not
unusual for courts to either misinterpret or to kind of veer
off from what we wanted to do. So, I say that in the way of
saying that when we pass broad civil rights legislation as the
Americans with Disabilities Act was, or as this is, or title
VII or some civil rights act, that we may have to from time to
time come back as a Congress to instruct the courts as to what
it is that we mean. I have no doubt that that's going to
continue far beyond my lifetime.
I want to switch to a different subject. Ms. Nguyen--
because this is going to come up; it was brought up by Ms.
Olson, and it's going to come up--and that is accommodations--
--
Ms. Nguyen. Yes.
The Chairman [continuing]. Accommodations about bathroom
facilities. How do you handle that issue?
Ms. Nguyen. Right.
The Chairman. Well, how do you do it at Nike?
Ms. Nguyen. Thank you, Senator. At Nike, employees use the
facility that corresponds to the gender to which they identify,
regardless of their gender at birth, and that includes locker
rooms in our fitness centers and our restrooms. So, in our
locker rooms and, of course, the restrooms, there are private
areas that employees could use if they so choose. If there are
unusual circumstances that arise, those are dealt with on a
case-by-case basis to arrive at solutions that are safe and
convenient and dignified for our employees.
The Chairman. So, you haven't experienced a real problem.
Ms. Nguyen. No, not at all.
The Chairman. That's why I wanted to cover it.
Senator Merkley.
Senator Merkley. Thank you very much, Mr. Chairman. I want
to ask a couple more questions.
I want to note that the letter that I submitted for the
record from the Union of Orthodox Jewish Congregations of
America, the U.S. Conference of Catholic Bishops, and the
General Conference of Seventh-Day Adventists, was a letter
written 2 years ago about the other religious exemption
language found in the House bill. It is the same language we've
incorporated into this Senate bill. But, I did want to clarify
that this was a 2007 letter written in the context of the House
discussion.
I wanted to switch now and ask a little bit more, Ms.
Nguyen, about Nike's leadership. The last year that we held a
hearing on ENDA here in the Senate was 2002--7 years ago. In
2002, you testified, Nike was 1 of just 13 companies that got a
perfect score from the Human Rights Campaign's Corporate
Equality Index, but that there's been a lot of change over the
last 7 years, in terms of companies signing up to provide
fairness in the workplace. Maybe you could just describe the--
I'm not sure how long you've been at Nike; I didn't catch that.
But, can you describe----
Ms. Nguyen. Since 2004.
Senator Merkley. OK. Then, since 2004, what kind of
transition have you seen in the business community across
America?
Ms. Nguyen. Thank you. That's a good question. Someone said
it before, I think, that the conversation has changed,
especially around diversity in a corporate environment. We know
that there is a direct correlation between diversity and
leveraging diversity and inclusion and a company's bottom line.
So, looking at it from that perspective, it just makes sense.
It's a huge business benefit for us at Nike. It's sort of
simple as that.
Senator Merkley. Thank you. Can you expand a little bit on
the group, Business Coalition for Workplace Fairness, a
coalition of 80 leading companies who support passage. In
addition to advocating for passage of this law, what kinds of
other things are they doing to advance fairness in the
workplace?
Ms. Nguyen. I don't have all the information that the
Coalition is doing; however, after the hearing, I'm happy to
have someone contact you for more information specifically
related to the Coalition.
[The information referred to may be found in Additional
Materials.]
Senator Merkley. That would be great.
Ms. Nguyen. Absolutely.
Senator Merkley. In terms of the Fortune 500 companies, if
we turned the clock back just 6 years, 360 of the 500 companies
provided protection, and now it's up to 425, only 75 that
don't--a diminishing number. It's a similar progress, in terms
of gender identity; it was only 26 companies, 6 years ago, and
in your testimony, I believe, you said it was more than a
third.
Ms. Nguyen. Yes.
Senator Merkley So, more than 100-and-about-60 companies,
at this point.
I'd just like to invite anyone else to speak, who has been
part of this conversation over the years, on the type of
transitions that have occurred between 2002, when we last held
a hearing, and 2009. Would anybody like to share any comments
or insights on that?
Ms. Olson. If I might share just some comments on that
question, as well as, I think, on the question from Senator
Harkin that was posed earlier, in terms of, What are really the
biggest challenges or the biggest impediments, in terms of
incorporation of the kinds of prohibitions that we're talking
about in ENDA and the workplace? I speak from an experience of
both myself as well as over 100 labor and employment lawyers
who work with employers across the country, counseling
employers regarding their policies and practices and
implementation of those policies and practices through training
and through other methods, in terms of developing what are the
appropriate practices. I think it is absolutely critical to
have clarity. I noted a number of different issues, and I note
them not as theoretical possibilities or issues, but I note
them. The issue of shared facilities is an issue that comes up
quite a bit. It does. ENDA, unlike almost all State laws--
currently, the draft that you're looking at, contains specific
language which directs employers, ``Here are the two
alternatives you have when this issue is posed.'' That's very,
very helpful to employers.
And, in terms of the other issues that I raised, I think
the more we can have clarity, the more that--the draft of ENDA
that we're looking at has a 6-month implementation cycle. And
to ensure that we have our policies and practices, we have
training with employees and their supervisors regarding, What
are the obligations if these policies and programs aren't
already in place or if, because they have a policy that's not
exactly in line with the requirements of ENDA, that it's
amended appropriately, I think it would be really helpful in
terms of seizing an opportunity to make sure everybody has
clear guidance and that they can implement the direction of
Congress in this area.
Senator Merkley. Like my colleague from Minnesota, I'm not
a lawyer, either.
[Laughter.]
Shocking, isn't it?
[Laughter.]
As you were going through your list, I was thinking back to
the conversations we had in Oregon about very fine points of
the law, what could produce a lawsuit, what could produce this.
I think that conversation is very responsible. I think it's
very useful. I also want to point out that the number of
complaints that have come in States that have implemented
workplace fairness from employers, it's incredibly few compared
to the number of employers covered. We're not aware of a single
such concern from a religious institution or any other
institution in Oregon in the 18-month history of our
implementation. While I think we should consider being as smart
as we can, I also want to recognize that--let's not lose track
of the forest for the trees. And that is that once you
establish a principle of equality under the law, of equal
opportunity, people get it, and their behavior changes, and it
works. And we need to get to that point by passing this law.
Thank you, to the whole panel--oh, yes, Mr. Carney. We'll
take this off of my colleague's clock.
[Laughter.]
Mr. Carney. Glad to do that, sir. I just wanted to say one
thing. I find it twisted and ironic that my job as a public
servant is to go out on the streets every day and to protect
the civil rights of everyone. Most of those civil rights, I
don't have as a gay American. I think it's time that Americans
speak up to this. It's an act like this and a bill like this
that offers a level playing field for all. It really, truly
means that we will all be treated equal. Isn't this what it's
all about?
Thank you.
Senator Merkley. That is what it's all about. Thank you.
Thank you for your earlier powerful testimony.
The Chairman. Senator Franken.
Senator Franken. Thank you.
I want to thank Senator Merkley for the statement he made,
which is that once you lay out these principles--that it's not
lawful to be prejudiced, to discriminate against people who are
gay and transgender and lesbian and bisexual--it changes
things.
I want to get into an area with Mr. Carney here. You spoke
to the nature of your job: law enforcement. It seems to me that
we've had problems, in the history of law enforcement, in terms
of the police and being biased, in the way they protect the
public safety, against, at certain times, blacks and against
gays. To what extent do you think that it probably helps
everybody to have a diverse population in our law enforcement?
Mr. Carney. Thank you, Senator. Very well put. You know,
the last 19 years of my life, since I've come out, has truly
been an unbelievable experience. It's been a learning
experience for myself, as well. Working with my community and
my department, we have come up with several programs to work
with kids. It builds and bonds the trust between the citizens
and the police officers. We do the same thing with the gay
community. The concept of community policing, which is, you
know, a term that we've all used over the years, is having a
department that looks like the community that it serves. I
believe that that should be a department that should be
integrated by race, gender, and sexual orientation. We have had
a lot of luck working with the community. Specifically, I have
been given information from the gay community on murders, that
we were able to solve. We were targeted--we had a heterosexual
man who was targeting gay men, and robbing them, and beating
them. They came to me, and they asked me what I could find out
about it. I went into the community, and we were able to solve
these problems. We can. I can't, but we can. It's a
fundamental--you know, it's just a concept that we need to work
together on. I think that it really brings in a whole new
concept into policing, having a department that looks like the
communities that we serve. And that's everyone.
Senator Franken. Thank you.
Mr. Carney. Thank you.
Senator Franken. Thank you, Mr. Chairman.
The Chairman. Very true, Mr. Carney. Very true.
Mr. Carney. Thank you, Senator.
The Chairman. Let me cover one thing. Being a lawyer but
not a very good one.
[Laughter.]
I do want to get something in the record regarding
sovereign immunity. And again, for instructions to the courts
down the way.
Attorney General Madigan, as the attorney general of
Illinois, do you support abrogating sovereign immunity here?
And, both you and Ms. Norton, do you think this is within the
purview of Congress, within our constitutional authority, to
abrogate sovereign immunity here?
Ms. Madigan. As the attorney general of Illinois, I have no
objection to abrogating State eleventh amendment immunity under
ENDA. In fact, the recent trend in Illinois has been for the
State to abrogate that immunity itself from suits under Federal
employment and Federal civil rights laws. So, I believe that
the citizens of the State of Illinois should have an unfettered
right to vindicate their Federal antidiscrimination claims. As
I mentioned, we have been doing this since I've been the
attorney general.
The Chairman. Very good.
Ms. Norton.
Ms. Norton. Mr. Chairman, I certainly agree that ENDA, as
drafted, satisfies the U.S. Supreme Court's criteria for
congressional abrogation of State sovereign immunity. First,
ENDA clearly and unequivocally announces Congress's intention
to abrogate. And second, the record that has been developed
over 15 years, and continues through today, clearly
demonstrates that Congress has a valid source of congressional
authority through the Fourteenth Amendment to abrogate State
sovereign immunity here. That longstanding record was most
recently supplemented by the Williams Institute report that you
alluded to. That's the most recent, and assuredly the most
extensive, discussion of widespread, persistent, and
irrational--irrational--discrimination on the basis of sexual
orientation and gender identity by State government employers.
Because that discrimination is irrational and has no relation
to ability in the workplace, it is unconstitutional, under any
standard, and, as a result, fully develops the record necessary
to establish that Congress has the fourteenth amendment
authority to abrogate State sovereign immunity in this context.
The Chairman. Very good.
I believe we have a vote on the floor now on cloture on
Commerce, State, and Justice Appropriations Act. Did anyone
have any final comments, from our panel? You've come a great
distance, some of you, and is there any final question that we
didn't ask that you would like to make a statement on before we
close shop here? Going once, going twice.
[No response.]
The record will remain open for 10 days for member
statements and questions for the record.
Thank you all. I thank my fellow Senators for being here
today. This is, again, I believe, one of the most important
issues confronting us as Americans, the ongoing issue of the
evolvement of our Nation in fulfilling civil rights. I don't
believe our country has ever gone wrong when we expand civil
rights. Never.
But I am respectful of Mr. Parshall and the community that
he's here to represent. This is a balance. I am very respectful
of people's religious beliefs. That's civil rights, also. But,
we have to balance those out for the good of the Nation. Quite
frankly, I feel that, through the evolvement of ENDA and
through the evolve-
ment--through the experiences that we have had with title VII,
with other civil rights bills, one that--again, I'm
particularly close to, the Americans With Disabilities Act--we
find our way through these things. I remember the debate around
the ADA, and, oh my gosh, the sky was going to fall, we were
going to have to do all these things, and were going to have to
hire people we didn't want to hire, and just--all these things
we heard. None of it really came to fruition. Fears were
shunted aside. Employers have found out that in many cases, the
best employees they can hire are people with disabilities.
We've opened up our whole society for families with children
with disabilities.
Again, I think--in this context also, I think we're always
going to be bumping up against different groups and what they
consider to be their civil rights compared to the civil rights
of other groups. But, I believe that, as I said earlier, courts
will have their role to play, but, as the U.S. Supreme Court
said in a very famous civil rights case involving the Americans
With Disabilities Act, as the Court said, ``We're not the final
word on this. The Congress is.'' This Congress will continue to
come back, come back in the future to look at these, and to
make sure that we balance these out so that people's civil
rights are respected in this country, but where no group can
impose on another group their beliefs. No group can take their
beliefs or their situations and force somebody else to do
something against their conscience. We're not about that. We're
about making sure that people can enjoy employment, can have
their rights protected, so when they go to work they are judged
not on what their belief is or whether they're male or female,
whether they're gay, bisexual, or transgender. Their status
should not be relevant. That's what this is all about, is
making sure that the structure is fair for everyone, and
everyone gets an equal shot at employment opportunities in this
country. That's what ENDA's about, and that's why I'm
determined, as chairman, to get this bill through next year.
Thank you all very much for being here, and the committee
will stand adjourned.
[Additional material follows.]
ADDITIONAL MATERIAL
Prepared Statement of Senator Dodd
Chairman Harkin, fellow members of the committee, thank you
for holding this hearing.
While I am proud to speak in favor of this landmark civil
rights legislation, I am troubled and a bit baffled that the
question of whether or not we should permit discrimination in
the workplace is still up for debate.
I'm proud to report that my home State of Connecticut has
had laws on the books prohibiting employment discrimination
based solely on sexual orientation since 1991. Nevertheless, in
29 other States, it is legal to fire someone because of their
sexual orientation. In 38 States, it is legal to fire someone
because of their gender identity. In an era that has seen so
much progress towards equality, those are shocking numbers.
The 1964 Civil Rights act prohibits employment
discrimination based on race, national origin, religion, and
sex. We are, as a nation, rightfully proud of that legislation,
and of the steps we have taken since to follow through on the
promise of a society--or, at the very least, a workplace--free
of discrimination.
But these employment protections have not been universally
applied to gay, lesbian, bisexual, and transgender Americans.
And that should offend us all.
I am proud to be an original co-sponsor of the Employment
Non-Discrimination Act (ENDA). Modeled after Title VII of the
Civil Rights Act, ENDA will make it illegal for private
employers in this country to fire, refuse to hire, or otherwise
discriminate against individuals because of their actual or
perceived sexual orientation or gender identity. It will also
empower the U.S. Equal Employment Opportunity Commission (EEOC)
and the Justice Department to enforce these new protections in
the same manner as for other forms of discrimination, and it
will prohibit the use of preferential treatment or quotas in
employment decisions.
For those who have faced discrimination in the workplace
because of who they are, and for those who fear it today, this
legislation is long overdue. But it is never too late to make
history. Last week, we did so when we expanded Federal hate
crimes statutes to cover violence motivated by sexual
orientation and gender identity. Let us do so again today by
finally remedying this unconscionable gap in our efforts to
build a more perfect union. Thank you.
Prepared Statement of Senator Brown
Thank you, Mr. Chairman, for holding this hearing.
I am sure it was with a heavy heart that you took over the
HELP Chairmanship after the passing of our dear friend Ted
Kennedy.
But we are comforted knowing it is his spirit and his
legacy of fighting for civil rights for all Americans that
brings us to this important day.
Fifteen years ago, Ted Kennedy first introduced the
Employment Non-Discrimination Act.
While there have been many battles since to extend the
equal protection of law to all Americans, I am encouraged that
the Senate will finally consider and pass this critical civil
rights and labor legislation during the 111th Congress.
It's unacceptable that in this day and age, qualified,
hard-working Americans are denied job opportunities or are
fired simply because they are gay, lesbian, bisexual, or
transgender (GLBT).
It's disheartening that many others live in fear that they
may lose their jobs if they are open about their sexuality.
Many Americans believe, erroneously, that current Federal
labor laws protect the GLBT community from discrimination of
this type.
But it is a sad fact that no such protection exists--it is
unfortunate that in many States, it is perfectly legal to fire
qualified individuals simply because of their sexual
orientation or identity.
The Employment Non-Discrimination Act is a common-sense
solution to this problem.
It extends current Federal employment discrimination
protections based on race, religion, gender, national origin,
age, and disability to include sexual orientation and gender
identity.
ENDA extends fair employment practices--not special
rights--to all Americans. It would prohibit employers,
employment agencies, and labor unions from using an
individual's sexual orientation or gender identity as the basis
for employment decisions such as hiring, firing, promotion, or
compensation.
In a nation based on equal rights for all, it is inherently
wrong that hardworking individuals could lose their incomes,
their benefits, and their livelihoods simply for being who they
are.
The time has come to afford all Americans equal protection
under the law, to provide all Americans the dignity and respect
they deserve.
The time has come to pass the Employment Non-Discrimination
Act.
Prepared Statement of Senator Sanders
I would like to thank Chairman Harkin for holding this
hearing on legislation that seeks to end employment
discrimination based on sexual orientation. Let me add that
this bill honors the late Senator Ted Kennedy, who strongly
supported, through many years of dedicated work, ending
discrimination in the workplace.
The battle for the rights of lesbian, gay, bisexual and
transgendered citizens is part of the long and important
struggle to ensure the civil rights of all Americans.
Unfortunately, today 29 States still permit employers to make
critical employment decisions based solely on an employee's
sexual orientation. And in 38 States it is still legal to
discriminate based on gender identity.
The Employment Non-Discrimination Act of 2009 (ENDA), of
which I am a cosponsor, is not only an appropriate but a
necessary step towards guaranteeing the civil rights of all
Americans.
ENDA extends protections to lesbian, gay, bisexual and
transgendered workers similar to protections provided in Title
VII of the Civil Rights Act of 1964. Currently, employers are
restricted from discriminating against citizens based on race,
religion, national origin, sex, age, or disability. This
legislation would make it illegal for business with more than
15 employees to fire, refuse to hire, or refuse to promote
employees based on their sexual orientation and/or gender
identity. The bill's language is, I believe, free of
ambiguities, and furthermore addresses sexual harassment and
shared facilities.
This legislation has widespread support: 50 civil rights
groups, over 60 Fortune 500 companies, the Business Coalition
for Workplace Fairness, Conference of Catholic Bishops, and the
Union of Orthodox Jewish Congregations of America support the
bill. Forty-two Senators have cosponsored it. According to a
2008 Gallup Poll, 89 percent of the Americans believe that gay
and lesbian Americans should have ``equal rights in terms of
job opportunities.''
We know that our Nation benefits when all people can
contribute their talents and skills in the workplace, where our
economy and our society is built. I believe we have a
responsibility to assure that all citizens are protected from
losing their jobs based on their sexual or gender identity.
Vermont is one of the 13 States that have already
recognized and protected the rights of all its citizens in the
workplace. My State, 15 years ago, enacted legislation to
prohibit discrimination based on sexual orientation. In 2007,
Vermont extended its protections to include gender identity.
The movement to guarantee fairness and equality in
employment for those individuals who identify as lesbian, gay,
bisexual, or transgendered is a major step forward for our
Nation and its citizens. I strongly support the Employment Non-
Discrimination Act, and I commend Chairman Harkin and the HELP
Committee for holding this hearing today on the need for, and
importance of, this legislation.
Statements of Support
Prepared Statement of Eliza Byard, Ph.D., Executive Director on Behalf
of the Gay, Lesbian and Straight Education Network
Chairman Harkin, Ranking Member Enzi, and members of the
committee: On behalf of the Gay, Lesbian and Straight Education
Network (GLSEN), I am pleased to submit written testimony
expressing our support for S. 1584, the Employment Non-
Discrimination Act of 2009 (ENDA). We appreciate your
addressing this important legislation that will support
workplace fairness for all Americans by prohibiting employment
discrimination based on sexual orientation and gender identity.
I would like to especially thank Chairman Harkin, along with
Ranking Member Enzi, for convening this hearing. It is
absolutely critical for this committee and Congress to address
the issue of workplace fairness, and to act decisively to end
employment discrimination by passing ENDA.
GLSEN is the leading national education organization
focused on ensuring safe schools for all students. Established
nationally in 1995, GLSEN envisions a world in which every
child learns to respect and accept all people, regardless of
sexual orientation or gender identity and expression. In
addition, we strive to ensure that each member of every school
community is valued and respected regardless of sexual
orientation or gender identity and expression.
Every year numerous qualified, hard-working Americans are
denied job opportunities, are terminated, or experience on-the-
job discrimination merely because they are lesbian, gay,
bisexual, or transgender (LGBT). This kind of discrimination
occurs in both public and private sector workplaces, across a
range of types of workplaces, all across the country. Workplace
discrimination threatens the well-being and economic survival
of workers and their families. Like other workers, LGBT workers
deserve to be judged on their skills and qualifications, on
their work and its merit, not on their sexual orientation or
gender identity, factors which are unrelated to job
performance.
Experience has shown us that, as with all workers, sexual
orientation and gender identity are not related in any way to
an educator's performance in schools. Unfortunately, State and
local governments have engaged in a widespread pattern of
discrimination against LGBT education employees.
Because LGBT education employees often fear being out in
the workplace, they have been reluctant to out themselves
further by pursuing complaints, and have faced administrative
courts that have been hostile to their claims; there may be
significantly more employment discrimination against LGBT
education employees than the reported cases and surveys would
indicate. Because of their actual or perceived sexual
orientation or gender identity, educators have been removed
from specific teaching or co-curricular responsibilities, or
forced from the classroom and education profession altogether.
In considering discrimination against LGBT education
employees, local discrimination cannot be meaningfully
separated from discrimination by State governments; it is part
of the same system of discrimination. Discrimination at the
local level is rooted in a history of State purges of LGBT
education employees; a history of State laws specifically
prohibiting LGBT teachers from teaching; State licensing
requirements for teachers that included morality fitness tests
that were interpreted to exclude LGBT employees; State laws
criminalizing same-sex behavior, including sodomy laws; and
State laws that prohibit positive portrayals or discussions of
same-sex or non-heterosexual topics, including sexuality
education laws that stigmatize LGBT people.
As an organization that is working to end bullying and
harassment of all students, GLSEN has explored the experiences
of students and teachers in order to develop recommendations to
improve school climate. One important factor is the presence of
educators who are supportive of LGBT students. GLSEN's 2007
National School Climate Survey showed that students who could
identify supportive educators were less likely to feel unsafe
in school; had less absenteeism related to safety; and reported
better educational indicators that included a greater sense of
belonging, higher grade point averages, and higher educational
aspirations.
The presence of LGBT school personnel who are out or open
at school about their sexual orientation and/or gender identity
provides another source of support for LGBT students by serving
as visible examples of a supportive and accepting school
climate. Yet only a third (36.5 percent) of students said they
could identify any openly LGBT personnel at their school.
GLSEN understands that school employees best serve students
when they have workplaces that are free from discrimination and
harassment, and calls upon public policymakers to adopt and
enforce measurable non-discrimination and anti-harassment
policies that include sexual orientation and gender identity.
ENDA would help to achieve the goals of improving academic
outcomes, as well as ensuring basic fairness for hard-working
Americans, by protecting employees from discrimination on the
basis of their actual or perceived sexual orientation or gender
identity.
Again, GLSEN thanks Chairman Harkin and Ranking Member Enzi
for this hearing on the Employment Non-Discrimination Act. We
appreciate the committee's attention to this issue, and we urge
you to move forward in sending S. 1584 favorably to the full
U.S. Senate. We deeply appreciate your efforts to ensure
workplace fairness for all Americans, and an end to
discrimination. If you have any questions, need any further
information, or if there is any other way that GLSEN can be of
assistance while you consider this important legislation,
please contact Shawn Gaylord, Director of Public Policy, at
202-621-5822 or [email protected].
Prepared Statement of Rea Carey, Executive Director, National Gay and
Lesbian Task Force Action Fund
Mr. Chairman, Vice-Chairman, and members of the committee:
We thank Chairman Harkin and the committee for holding a
hearing on the Employment Non-Discrimination Act (ENDA), S.
1584. On behalf of the National Gay and Lesbian Task Force--the
oldest national organization advocating for the rights of
lesbian, gay, bisexual and transgender (LGBT) people--we urge
you to support this critically important legislation. Hard work
and fair treatment are core American values and no American
should be denied the opportunity to work because of factors
unrelated to job performance.
Improvements in the Nation's current economic crisis hinge
on the talents and expertise of a fully functioning workplace.
An analysis of Census 2000 data shows a strong link between
thriving tech-oriented economies and diverse populations,
including those with high LGBT populations. Workplace equity
encourages regional growth centers, as top-notch employees have
migrated to centers where they can be assured that their
talents will not be suppressed due to legal inequities and
arbitrary prejudices. ENDA will ensure that all Americans have
an equal playing field as they seek to secure a livelihood for
their families and grow our communities.\1\
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\1\ Gates and Florida, 2002. The link between diversity and
economic success was first proposed in a paper that examined 5 urban
centers with the largest LGBT population--San Francisco, Washington,
DC, Austin, Atlanta and San Diego. Richard Florida's research in this
arena suggests a strong linkage between equal justice in the workplace
and creativity and success within companies and communities.
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Currently, the playing field is far from even. Analyses of
existing studies and new data suggest that up to two thirds of
LGB people--and nearly all transgender people--have experienced
employment discrimination. ENDA is essential to addressing this
widespread problem.
LGBT AMERICANS FACE HIGH LEVELS OF EMPLOYMENT DISCRIMINATION
Over 50 studies of discrimination against LGB people have
established that they face significant barriers to equality.
Fewer studies have been conducted about discrimination against
transgender people; our work surveying 6,450 transgender and
gender non-conforming people about gender identity-based
discrimination in the workplace begins to fill that gap.
Further research is needed, particularly the inclusion of
sexual orientation and gender identity in population-based
surveys of the workforce, such as the Bureau of Labor
Statistics surveys.
Discrimination against lesbian, gay, bisexual and
transgender people in the workplace persists despite the
increasing visibility of these communities and improved local
and statewide protections against anti-LGBT prejudice and
violence.
A 2007 meta-analysis of 50 studies of workplace
discrimination against LGBT people found consistent evidence of
bias in the workplace. Ranges for critical workplace concerns
such as overt discrimination, firing, denial of promotion or
negative performance evaluation (based on bias) were as
follows:
16 percent to 68 percent of LGBT people report
experiencing employment discrimination;
8 percent to 17 percent were fired or denied
employment;
10 percent to 28 percent were denied a promotion
or given negative performance evaluations;
7 percent to 41 percent were verbally/physically
abused or had their workplace vandalized;
10 percent to 19 percent reported receiving
unequal pay or benefits.
In addition, 12 to 30 percent of heterosexual co-workers
report witnessing discrimination against their LGB peers. These
realities, often minimized as a problem of subjective ``self-
reporting,'' have been confirmed in a study that surveyed
observations of heterosexual co-workers. Researchers querying
heterosexuals about witnessing discrimination against their LGB
peers found that 12 percent to 30 percent of respondents in
certain occupations, such as the legal profession, have
witnessed anti-LGB discrimination in employment.
Discrimination and attendant loss of income and benefits
can lead to poverty for LGB people over their lifespan.
According to the Williams Institute, lesbian couples have a
poverty rate of 6.9 percent compared to 5.4 percent for
different-sex married couples and 4.0 percent for gay male
couples. Outcomes are more severe when we examine LGB families.
When we calculate the poverty rates for all members of the
family, that is two adults and their children, the poverty rate
for lesbian families is 9.4 percent compared to 6.7 percent for
those in different-sex married couple families and 5.5 percent
for those in gay male coupled families. In general, lesbian
couples have much higher poverty rates than either different-
sex couples or gay male couples. Lesbians who are 65 or older
are twice as likely to be as poor as heterosexual married
couples.
Poverty rates for children of same-sex couples are twice as
high as poverty rates for children of married couples. Although
gay and lesbian couples are less likely to have children in
their households than are heterosexual married couples,
children of same-sex couples are twice as likely to be poor as
children of married couples. One out of every five children
under 18 years old living in a same-sex couple family is poor,
compared to almost 1 in 10 (9.4 percent) children in different-
sex married couple families. The research points to the
negative outcomes of discrimination for LGB people and refutes
the common misconception that gay people have more money and
live large. Workplace discrimination affects the entire
family.\2\
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\2\ The Williams Institute: Bias in the Workplace: Consistent
Evidence of Sexual Orientation and Gender Identity Discrimination, 2007
and Poverty in the Lesbian, Gay, and Bisexual Community, 2009.
---------------------------------------------------------------------------
NATIONAL STUDY FINDS RAMPANT WORKPLACE DISCRIMINATION
The Bureau of Labor Statistics fails to ask sexual
orientation and gender identity questions in its annual data
collection efforts, making it impossible to get randomized data
on LGBT people's experiences of workplace discrimination.
Instead, the work of chronicling the community's experiences of
bias has been left to community-based organizations and a
handful of pioneering researchers and institutes. While the
data on discrimination against LGB people is relatively scarce,
there have been even fewer studies on the workplace experiences
of transgender Americans.
To address this gap, in a joint effort with the National
Center for Transgender Equality, the Task Force recently
undertook a national survey of transgender people and the
discrimination they endure in employment, education, health
care, housing, public accommodation, criminal justice, family
life, and access to governmental documents. Over a 6-month
period, we surveyed 6,450 transgender people throughout the
United States via an extensive questionnaire, including people
in every State of the Nation as well as Washington, DC, Puerto
Rico, Guam, and the U.S. Virgin Islands. Until this study, data
on the prevalence of this discrimination has been limited to
small studies and anecdotal reports.
Our key finding is this: the State of the workplace for
transgender Americans is absolutely shameful.
Discrimination in employment against transgender people is
a nearly universal experience.
Ninety-seven percent (97 percent) of our sample
reports transgender people being mistreated or harassed at
work.
Nearly half (47 percent) lost their jobs, were
denied a promotion, or denied a job as a direct result of being
transgender. These statistics are alarming and have multiple,
spiraling negative affects on quality of life.
Transgender Americans face twice the rate of unemployment
as the general population for our sample during the time of the
study.
Black transgender people reported nearly four times the
rate of unemployment as the general population (26 percent),
while Latino and Multi-racial transgender people experienced
nearly three times the rate of unemployment.
High unemployment had predictably detrimental effects on
income, with participants in our study experiencing twice the
level of extreme poverty as those in the general population.
Census figures for 2005-7 show 7 percent of the general
population living on incomes at or below $10,000 while our
study found 15 percent in this income category. Again,
transgender people of color are struggling with poverty at
significantly higher rates, with 23 percent of multiracial
transgender people living on $10,000 or less, Latino/as at 28
percent, and African-American transgender people at an
outrageous 35 percent.
Survey respondents experienced a series of devastating
negative outcomes, many of which stem from the challenges they
face in employment. A large percentage of our sample has
experienced negative impacts on their housing security as a
direct result of their gender identity, with almost one-fifth
of the respondents becoming homeless because they are
transgender. In addition, 26 percent of our sample reported
having to find different places to sleep for a short period of
time and 25 percent were forced to leave their homes and move
in with family or friends.
Employment issues also impact transgender people's access
to health care. Transgender and gender non-conforming people do
not have adequate health insurance coverage or access to
competent providers. Respondents in our sample are uninsured at
the same rate of the general population in the United States--
19 percent--but only 40 percent of the sample enjoys employer-
based insurance coverage, compared to 62 percent of the
population at large. This figure underscores how high
unemployment creates multiple liabilities for our sample.
These preliminary figures represent the tip of the iceberg
for what employment discrimination does to transgender people.
In the weeks to come, the Task Force and National Center for
Transgender Equality will release data on housing instability,
inability to access shelter, poor health care provision,
harassment and violence at school and other alarming outcomes
of far-reaching discrimination. Without work, transgender
people are at the mercy of systems that are unwelcoming at best
and, more often, actively hostile.
ENDA BENEFITS REAL PEOPLE
As our study and those of the Williams Institute
demonstrate, employment discrimination against LGBT people is
more prevalent and widespread than statistics drawn from
reported court decisions and administrative complaints
generally indicate.
Our mandate today is clear: employment protections are
paramount.
Because the law protects LGBT people in only 40 percent of
the country, and many of these protections are in the form of
hard-to-enforce local laws, there is unfortunately very little
LGBT people can do to seek re-dress. Where there are laws and
complaint processes, LGBT employees often are reluctant to use
these processes because they must ``out'' themselves to members
of the community or to future employers by filing official
complaints.
ENDA is crucial because it will create a Federal standard
that imposes a baseline of respect and equal treatment for LGBT
people as a whole, while specifically addressing a desperate
need for protections for transgender people in the workplace
that are demonstrated by our survey data.
ENDA recognizes that a person's sexual orientation or
gender identity bears no relationship to his or her ability to
perform at work and provides employees with the same
protections for sexual orientation and gender identity that all
people receive for race, color, religion, sex, and national
origin under Title VII of the Civil Rights Act. ENDA does not
give special protection; it covers heterosexual and non-
transgender people if they are discriminated against as well.
Nevertheless, those who are the most likely to benefit from
this legislation are members of the LGBT community. Nearly
every type of employer regularly engages in discrimination:
there is no sector, private or public, technical, skilled or
unskilled, in which LGBT people are safe from discrimination.
State governments, in their capacities as employers, have acted
as every other employer, engaging in a widespread pattern of
employment discrimination against LGBT employees and
applicants. When 97 percent of transgender people are
experiencing mistreatment and harassment in employment and
reporting rampant unemployment and underemployment, as our
study showed, it is clear that every employment sector is
discriminating, including State employers.
Below are a few examples of the employment discrimination
and problems with underemployment that lesbian, gay, bisexual
and transgender people have endured in the workplace simply for
being who they are.
Laura Calvo: Laura Calvo, a transgender woman in
her fifties who resides in Portland, OR, worked for the
Josephine County, Oregon Sheriff 's Office for 16 years as a
Deputy Sheriff and Sergeant. During the course of her
employment, she served in many capacities: shift supervisor,
Sheriff Sub-Station Commander, Detective in the Major Crimes
Unit, Detective in the Josephine County Interagency Narcotics
Task Force, S.W.A.T. team leader and Commander. Laura remained
closeted in the workplace because she wanted to carry on a
responsible career where she could contribute to society and
knew if her transgender status was discovered she would be
terminated. In October 1996, Laura Calvo was the victim of a
burglary and many of her personal belongings were stolen. In
the course of the recovery effort her transgender identity was
discovered by her employers. She was called into her
supervisor's office and told she could not retrieve her
belongings because they needed to be examined for evidence of
violations of department policy and potential crimes. She was
then ordered by her supervisor to undergo a psychiatric
determination for fitness of duty to return to work. The panel
of doctors, selected by the Sheriff 's office, determined she
was not fit to return to duty. Laura was told that she could
not return to work and that the Sheriff thought she was a
``freak.'' Laura was then forced to resign. Source: Testimony
to the Oregon State Senate, 2007.
Linda Czyzyk: Linda is an attorney and her partner
is a college professor who teaches biology and genetics. The
couple lived in North Carolina and Linda worked at a law firm
where she was openly gay. When Linda's partner accepted a
faculty position at a university in Virginia, the couple needed
to relocate to Virginia.
In August 2000, Linda had a phone interview with a law firm
in Virginia and was invited for a second interview at the
firm's office. During the interview, the firm repeatedly asked
her why she was moving to Virginia. Linda replied that her
spouse had taken a position at a local university, making sure
that she avoided using pronouns. The law firm asked Linda to
come back for a third interview, but this time she was told to
bring her spouse because the interview would include a dinner
with all the partners and their spouses ``to make sure we all
got along.''
Linda told the only female partner at the law firm that her
spouse was a woman. The female partner said that was fine by
her, but she would have to inform the other two partners at the
firm. After talking to the male partners, the female partner
called Linda back to tell her that the male partners said the
firm would not hire a lesbian and Linda should not bother
coming to the third interview. Source: American Civil Liberties
Union, Living in the Shadows: Ending Employment Discrimination
for LGBT Americans, 2007.
Alexandra: Prior to Illinois passing a gender
identity inclusive non-discrimination law in 2002,
Alexandra,\3\ a transgender woman, worked in an Illinois State
government office at the College of Lake County in Grayslake,
IL. She transitioned from male to female at work with the help
of her therapist who met with staff and supervisors. At this
meeting, Alexandra's supervisors told her to continue to use
the men's restroom. After the meeting, her supervisor and co-
workers persisted in calling her by her male name and referring
to her as ``he.'' Alexandra voiced her issue with this, asking
to be treated as the woman she had transitioned to become. She
was told by her supervisor that she was acting
confrontationally. This ``confrontationalism'' was cited as a
reason Alexandra needed to improve her personal relations at
work. The supervisor claims that the staff is trying to make
``adjustments'' for Alexandra, but the supervisor is one of the
biggest culprits who continue to call Alexandra by male
pronouns. Alexandra went to the steward of her union to ask for
assistance in this matter, but even the steward did not want to
help. Now, Alexandra believes she may have to get her own
representation to deal with discrimination she has faced in the
workplace. Source: 6th Report on Discrimination and Hate Crimes
Against Gender Variant People. It's Time, Illinois . . .
Political Action for the Gender Variant Community, Spring 2002.
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\3\ This is not the true name of the victim to protect her privacy.
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Ronald Fanelle: Ronald Fanelle taught seventh and
eighth graders at a California middle school. The other faculty
and the principal knew that Ronald was gay, but his students
did not. A month after Ronald and his partner were married in
February 2004, his co-workers congratulated him at a staff
meeting. Then a teacher told his students that Ronald had
gotten married to a man over the weekend and the news spread
around the school. Ronald's students asked if it was true that
he married a man. Ronald told them it was true.
In the following weeks, one parent, a personal friend of
the school board president, vocalized his opposition to a gay
man teaching in the school and arbitrarily accused him of
bringing ``his homosexual agenda into the classroom.'' The
school hired a private investigator to investigate the
situation and Ronald's background. Nothing damaging emerged.
Ronald, however, received hate mail on his school e-mail
account and dozens of viruses were sent to the district, which
shut down its system. Ronald was instructed in writing to open
a private e-mail account in order for parents and students to
communicate with him.
In the following year, a few students created an anti-gay
Web page that ridiculed Ronald. Offensive stickers relating to
Ronald's sexual orientation were posted all over the school.
The principal called a meeting prior to the new 2006-7 school
year. In the meeting, the principal made disparaging comments
to Ronald in front of another principal, the union president,
and the district's superintendent of personnel. His principal
went on to tell Ronald: ``Your problem is you're angry because
no one will accept your gay marriage!'' The school district
then began interrogating students about Ronald. The students
reported that Ronald did not talk about his personal life and
he was well liked. A week later, the superintendent of
personnel formally disciplined Ronald for ``inappropriate e-
mail communication'' with students and parents because Ronald
was sending e-mail from a private e-mail account instead of his
school account. Ronald was only using a private account because
the school had shut down his school account, due to the amount
of hate mail and viruses. Over 3 years, four students were
removed from Ronald's classroom because their parents
disapproved of his sexual orientation. The district's response
to Ronald was simply stated as: ``It's a conflict of family
values.'' In February 2007, due to the principal's and the
district's harassment, Ronald took an extended sick leave.
Source: American Civil Liberties Union, Living in the Shadows:
Ending Employment Discrimination for LGBT Americans, 2007.
Tony: Tony, \4\ a transgender man, was employed
for 13 years by a nightclub in San Francisco, CA, a State that
includes gender identity in its employment non-discrimination
law. Tony informed his employers that he is transgender and his
direct supervisor began egregiously harassing him. Tony's
supervisor repeatedly asked Tony inappropriate questions about
his body and his sexual preferences. The supervisor refused to
address Tony with male pronouns and often made comments to Tony
such as, ``You are not a real man.'' Tony was demoted from a
high-level management position to a low-level service position
and his pay was severely cut. He became incredibly depressed.
The harassment escalated over many months and finally
culminated in an incident wherein Tony's supervisor chased Tony
in the club calling him a ``freak'' and a ``b**ch'' and
threatening him with physical violence. Tony could no longer
handle the harassment and was forced to quit his job. Tony
brought a lawsuit against his former employer under
California's Fair Employment and Housing Act, which bars
discrimination based on gender identity, and reached a
favorable settlement. Source: Transgender Law Center, Kristina
Wertz, Legal Director.
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\4\ This is not the true name of the victim to protect his privacy.
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Juan Moreno: Juan is a Latino community college
student studying nursing who also works to help support his
single mom and teenage sister. Juan applied for a part-time job
at a local fast food restaurant where his friend worked. He
interviewed with a shift manager in February 2007. He had a
successful interview with the shift manager who told Juan's
friend that Juan would work out. The shift manager recommended
to the store manager that Juan be hired. The store manager knew
Juan was friends with a current employee and had seen Juan come
into the store to visit his friend. The store manager asked
Juan's friend: ``Is he into men or women? '' Juan's friend
informed the store manager that Juan was gay, but then asked,
``what does that have to do with hiring him? '' The store
manager replied: ``I'm the head manager and I can do what I
want to do.'' Juan was not hired. Source: American Civil
Liberties Union, Living in the Shadows: Ending Employment
Discrimination for LGBT Americans, 2007.
Jacqui Charvet: Jacqui Charvet, a transgender
woman, worked for 10 years as a consultant in computer
technology with a firm with clients in the New Jersey and New
York areas, with 16 years of computer technology experience
that preceded her years as a consultant. Numerous consulting
gigs were with the State of New Jersey, including with the NJ
Department of Health, NJ Department of Treasury, and NJ
Department of Human Services. She let her supervisor at the
consulting firm know that, between assignments, she had plans
to transition gender, so that at the next assignment, she would
be coming to work as her new gender, including using her new
name, Jacqui (instead of her old male name), dressing as other
women employees, and that female pronouns would be appropriate
for her at that point. She had planned to transition between
assignments to keep the process as smooth as possible. However,
instead of supporting her transition, her supervisor laid her
off, refusing to assign her to a new gig. For the next 3\1/2\
years she attempted to find a job, public or private, in New
Jersey, but to no avail. Upon discovering she was transgender
and used to be a man, many hopeful employers turned her away.
At one interview, she walked in and was told that they wanted
to hire a ``real man'' for the position. With 26 years of work
experience, 10 years as a consultant at the firm that ``laid''
her off, Jacqui found herself forced to leave the State to find
employment with a private company in Florida that hired her
after a phone interview. Source: Conversations between Task
Force staff and Jacqui Charvet, 2008 & 2009.
Brooke Waits: Brooke worked as the inventory
control manager for a cell phone vendor. In the 4 months Brooke
worked for the company, her supervisor continually praised her
for her work. Brooke was not out to her co-workers at the
store. She was quiet and kept to herself because she did not
fit in with the other women who worked at the store and her
male coworkers told a lot of lesbian jokes. In an effort to
avoid controversy, Brooke did not say anything when her co-
workers made anti-gay jokes and derogatory comments.
In May 2006, Brooke's manager approached Brooke's desk to
ask her a question. Brooke was on the other side of the room
sending a fax. Brooke's manager picked up Brooke's cell phone
off of her desk, opened it, and then exclaimed ``Oh my
goodness!'' Brooke's manager had seen the screen saver inside
Brooke's cell phone, which was a picture of Brooke and her
partner sharing a New Year's Eve kiss. Brooke's manager
immediately left the room and did not speak to Brooke at all
for the rest of the day. Later in the day, Brooke overheard the
manager tell another co-worker, ``I knew there was something
off about her.''
The next day, Brooke arrived at work and, as soon as she
walked in the door, her manager asked to speak with her. The
manager told Brooke that she was fired. When Brooke asked why,
the manager told her that they needed someone more
``dependable.'' Brooke told the manager that she was dependable
and, in fact, had been coming to work an hour early every day
to work on implementing the new inventory system. The manager
replied: ``I'm sorry, we just need to let you go.'' Source:
American Civil Liberties Union, Living in the Shadows: Ending
Employment Discrimination for LGBT Americans, 2007.
Dylan Scholinski: Dylan Scholinski, a transgender
man, lives on the edge of poverty despite holding a master's
degree and writing an award-winning memoir of his
institutionalization as a teenager for ``gender identity
disorder.'' Dylan was forced into ``treatment'' from the ages
of 14-17 that included mandatory make-up sessions and the
wearing of skirts and other attire to ``cure'' him of his
gender identity. Now in his 40s, despite having experienced
life-long depression as a result of abuse from teachers,
medical providers and mental health professionals, Dylan has
never qualified for disability as is commonly available to
people with PTSD and debilitating depression. Dylan currently
runs a free teen suicide prevention arts program out of an art
studio in Denver, CO. He is not compensated for his work,
despite serving hundreds of LGBT youth struggling with gender
identity and sexual orientation issues. Having lived his youth
in enforced isolation and torment, he is committed to creating
a safe space for LGBT youth in his community. Dylan continues
to search for sustainable income to no avail. Source:
Conversation between Jaime Grant, Ph.D., Task Force Policy
Institute and Dylan Scholinksi, 2009.
Janice Dye: Janice worked as a mechanic in an oil
change service center in San Diego. Janice got along well with
the other mechanics at the service center, who were excited to
have a female mechanic working with them. Janice was out at
work and her girlfriend occasionally brought her lunch at work.
The service center's management, however, was not supportive of
Janice. Janice was the only female mechanic in the shop, as
well as the only African-American and lesbian who worked at the
service center.
In 1997, Janice applied for a 3-month training program to
become an assistant manager. At the end of the training
program, she had to take timed tests. Janice was fired because
she could not complete an oil change in less than 10 minutes.
However, management made her do the oil change alone, even
though the usual procedure was to use two workers to complete
an oil change (one in the ground pit below the car, and one on
the ground floor at the car's hood). Janice's coworkers told
her that they heard managers in the break room saying: ``we
won't let that lesbo-b**ch get that job.''
After being fired, Janice left the service center and
started to work at another location owned by the same company.
She hoped she would not be discriminated against at the new
location, but the managers treated her the same. She had to
take the same test of completing an oil change in 10 minutes
and, again, she had to do the oil change alone (taking time to
run up and down the stairs to the pit below the car).
Management did not even let her finish the oil change because
she had gone over the 10-minute limit. After 10 minutes, the
manager yelled: ``time's up'' and ``you're fired.'' Source:
American Civil Liberties Union, Living in the Shadows: Ending
Employment Discrimination for LGBT Americans, 2007.
Michelle Hansen: Michelle Hansen is an Episcopal
priest and computer industry trainer who lives in Connecticut.
Michelle worked successfully at a medium-sized computer repair
and training company for nearly 18 years, the latter part of
her time as the company's senior technical trainer. In June
2004, a week after notifying her employer of her plans to
transition from male to female, she was terminated from her
job. Michelle's employer claims to have terminated her for
economic reasons; however, the company had recently hired two
other employees who were not fully trained or certified.
Michelle has two Master's degrees from Yale University and a
long list of certifications in the computer industry, but she
has not been able to find employment since being terminated
several years ago. Source: Testimony to the Judiciary Committee
of the Connecticut General Assembly, 2009.
Brad Nadeau: In April 2002, an insurance company
in Bangor, ME employed Brad as a receptionist. After about a
month, Brad was called into a meeting for his performance
review. All of his work was rated satisfactory--he was not told
that any areas of performance needed improvement. In fact, Brad
trained a new employee who was hired a couple weeks after he
was hired. Brad was not out at work because he was concerned
that if he was honest about his sexual orientation, he might
lose his job.
On June 2, 2002, Brad's partner picked him up at work and
they went out for lunch together. When his partner brought him
back to the office, they kissed goodbye in the parking lot.
Brad noticed that an agency executive saw their kiss. The very
same day, Brad was called into a meeting with his supervisor
and the executive. His supervisor told Brad that he was being
fired because his work was not satisfactory, despite his
positive performance evaluation and the fact that he had over 4
years of office and administrative work experience.
Brad's termination seems to have violated company policy.
The company policy states that the company is ``committed to
providing a work environment that is free of discrimination.''
The company also has a policy of progressive discipline, which
the company states is ``intended to give employees advance
notice, whenever possible, of problems with their conduct or
performance in order to provide them an opportunity to correct
any problems.'' Regardless, the company did not give Brad any
warning before they fired him. Source: American Civil Liberties
Union, Living in the Shadows: Ending Employment Discrimination
for LGBT Americans, 2007.
Kim Dower: Kim Dower is a transgender woman who is
employed as a pharmacist in Colorado. After working for 9 years
as a pharmacist, Kim told her employer of her future plans to
transition from male to female. In March 2004, Kim was ready to
start coming to work as herself, but her employer informed her
that she would not be allowed to work at the pharmacy unless
she continued to dress as a man. In effect, this would block
her from transitioning to her new gender at work. In response,
Kim filed a claim under Denver's anti-discrimination ordinance.
She was given a preliminary ruling in her favor. However, this
only resulted in mandatory mediation. In this mediation, Kim's
employer refused to allow her to present as a woman unless she
signed a nondisclosure agreement that would prevent her from
telling anyone that she had won her case and that people in
Denver do have the right to transition gender at work. Kim,
wanting to be able to share her story so that other transgender
people would know they have rights to transition and dress as
themselves at work, refused to agree to this gag order. An
entire year had passed with her employer threatening to fire
her if she dared come to work dressed as herself. Eventually,
with great trepidation, she came to work dressed as a woman
hoping that her employer would choose not to fire her on the
spot as they had threatened. To Kim's surprise the employer did
not take action against her as they had previously threatened
to do. All in all, it was a terrible year for Kim, unsure that
the local law would be strong enough to protect her if she came
to work as her true self. Source: Testimony to the Colorado
Civil Rights Commission, July 30, 2009.
John Schumacher: John is a Marine veteran who
worked the overnight shift as stocker and ``four star'' cashier
at a large retail store in Michigan's Upper Peninsula. In 3
years on the job, he was named ``Associate of the Month'' four
times. He is the primary breadwinner because his partner has a
disability. He and the cashier supervisor carpooled to work
everyday. At the time, the cashier supervisor was not John's
supervisor, however, because John worked in the stockroom.
After 3 months of carpooling, John told the cashier supervisor
he was gay and she immediately began treating him coldly.
For several months, John was ignored by the cashier
supervisor and he went about his business. But when John was
promoted to cashier, the cashier supervisor became his direct
supervisor. ``It was hell, starting off the bat,'' John said.
The cashier supervisor treated John differently than the other
cashiers. She assigned John stocking tasks in the shelves
around the checkout lanes then yelled at him for leaving his
register. This pattern of treatment continued over time. John
complained to the head manager to no avail; each night the
cashier supervisor would find a new way to make it more
difficult for John to do his job.
On February 5, 2007, John came to work and realized he
forgot to bring lunch. John called home and asked his partner
to bring something for lunch. His partner brought him a frozen
dinner from home. John ate the dinner in the break room in view
of other workers and the cashier supervisor. Two weeks later,
John was accused of stealing a frozen dinner from the store's
grocery section. He was not able to produce a receipt for the
frozen dinner because he and his partner had bought it weeks
before and did not save the receipt. He was fired on the spot.
Source: American Civil Liberties Union, Living in the Shadows:
Ending Employment Discrimination for LGBT Americans, 2007.
Ethan St. Pierre: Ethan St. Pierre, a transgender
man from Massachusetts, was a respected security junior manager
at Barton Protective Services, overseeing 30 employees that
staffed the East Coast offices of Sun Microsystems. He was
hired by Barton in 2001 and received numerous favorable
performance evaluations and a number of corresponding pay
raises. In 2002, he talked to his direct supervisor at Barton
and the Sun Microsystems security manager that interfaced with
him at Barton about his desire and intention to undergo a
gender transition from female to male, and generally he was
received favorably. When the time was right, an announcement
was made to the 30 employees Ethan supervised that Ethan was
now going to be Ethan and would be going by male pronouns. All
of his 30 employees treated him with respect, including using
his new name and male pronouns. All was fine for 6 months,
until the Sun Microsystems manager happened to interface with
Ethan for the first time since Ethan had transitioned and saw
that Ethan had transitioned. The Sun Microsystems manager
slowly whittled away Ethan's responsibilities. In the meantime,
Ethan's supportive manager at Barton was replaced by someone
who did not respect Ethan. This new manager told coworkers,
including Ethan's supervisers, that he did not agree with
Ethan's ``lifestyle.'' One day, this manager informed Ethan
that he was being removed from his position at Sun Microsystems
because the Sun Microsystems manager did not believe Ethan
could do the job because of his gender transition. That was the
final word. Ethan repeatedly asked to be assigned to another of
Barton Protective Services' clients, but to no avail.
Ultimately, he had to seek unemployment benefits. Ethan's
attempts to find other jobs in the security field failed
because Barton provided an unfavorable job performance review.
Ethan was never able to find another job in the security field
after this experience. Source: Testimony of Ethan St. Pierre to
the Massachusetts Legislature, available at: http://
www.masstpc.org/publications/legis/StPierre
Firing.pdf.
Jacinda Meyer: Jacinda is Latina and a licensed
life and health insurance agent in California. She worked for a
company that administers employee benefits to client companies.
After she worked at the company for 9 months, she received
positive feedback about her job performance and was given a
raise. Her supervisors even gave her handwritten cards to thank
her for her good service, teamwork, and positive attitude.
Throughout her tenure at the company, Jacinda's supervisors
made several derogatory comments about lesbians. One of
Jacinda's supervisors ``warned'' her before a meeting that the
client was a lesbian and said: ``I'm telling you now so you
don't freak out when you see the pictures of two women on her
desk.'' Jacinda did not respond to this comment but later told
another of her supervisors about the conversation. That
supervisor asked: ``Do you swing that way? '' Jacinda replied
that she was gay. The supervisor said: ``Well, I'm fine with it
as long as you don't kiss or hold hands in public.''
Soon after Jacinda came out to her supervisor, the owner of
the company approached her and told her about a book, The Road
Less Traveled, which helped his son, who was a recovering drug
addict. Jacinda interpreted the owner's comment as comparing
being gay to being a drug addict. Her supervisor gave Jacinda
the assignment of reading the book and writing a one-page essay
about how it could improve her life.
Jacinda was offended by the book's characterization of
homosexuality as immoral behavior. She was also offended by
other passages that mentioned masturbation. Additionally, the
book's perspective on spiritual growth made her uncomfortable.
Jacinda wrote a letter to her supervisor saying she was
uncomfortable with the assignment because the book's message
violated her beliefs and she requested that her assignment be
changed to read another book. After she requested a different
assignment, Jacinda's co-workers stopped talking to her and
stopped asking her to join them at lunch. Shortly after that,
Jacinda was fired on March 23, 2007. The company claimed that
she was fired because the company's revenue was too low, but
the company hired other people for the same job after they
fired Jacinda. Source: American Civil Liberties Union, Living
in the Shadows: Ending Employment Discrimination for LGBT
Americans, 2007.
Alynna Lunaris: Alynna Lunaris, a transgender
woman from Maryland, was employed at the Washington Humane
Society (WHS), a non-profit that receives a government contract
from the District of Columbia for animal control services. She
was first hired by WHS in January 2005, as a front desk
assistant at the District of Columbia Animal Shelter, where she
quickly rose through the ranks, being promoted to an Animal
Control Officer soon after she started. In June 2006, Alynna
began taking hormones and making other steps as part of her
transition from male to female in all areas of her life. In
September 2006, she took vacation, informing management that
when she returned, she would be returning as a woman. When she
returned, Alynna submitted a court order showing her change of
name, as well as a copy of her new driver's license, which
designated her as a female. Within 2 weeks of her return,
however, she started feeling discrimination from WHS
management. This began when a promotion to Field Services
Supervisor became available. Alynna was asked to apply only to
be told later that an application from her would not be
considered.
Over the next 5 months she suffered under discriminatory
conditions fostered by two managers. The managers continually
referred to Alynna using male pronouns and were otherwise
hostile toward Alynna. The situation escalated to the point
where WHS transferred her to a position in the private law
enforcement department that was not under the control of those
two managers. Alynna worked for the next 6 months without
incident, receiving many compliments on her work. Things were
going well until the executive director left his position. One
of the managers who had unfairly treated Alynna in her previous
position was promoted to interim executive director. Upon the
manager's promotion, the harassment and discrimination began
again. Within 3 months, Alynna was fired from WHS by e-mail
after management had filed several fabricated incident reports
against her. Alynna has filed a complaint with the District of
Columbia's Office of Human Rights which enforces the city's
transgender-inclusive nondiscrimination law and has recently
received preliminary findings related to probable cause. The
appeals process is underway. Source: Testimony to the Maryland
House of Delegates, February 25, 2009 and Senate, March 3,
2009; Conversation between Thomas Bousnakis, Task Force Fellow
and Alynna Lunaris, 2009.
ENDA PROTECTS AMERICAN WORKERS
ENDA will help protect workers from discrimination in the
workplace by prohibiting discrimination on the basis of sexual
orientation or gender identity in the same way that Title VII
of the Civil Rights Act prohibits discrimination on the basis
of race, color, religion, sex, or national origin. ENDA
provides employees with the same meaningful remedies that are
available under title VII.
ENDA covers public employers, private employers, employment
agencies, and labor organizations. It makes it unlawful to
fire, refuse to hire, or take any other action that would
negatively impact a person's status as an employee based on
that person's sexual orientation or gender identity.
Additionally, it would prohibit discrimination against an
employee as a result of the sexual orientation or gender
identity of someone with whom the employee associates.
Furthermore, ENDA would make illegal any discrimination against
an individual because that person has opposed or spoken out
about an unlawful employment practice.
The military, religious organizations, and employers with
fewer than 15 employees are all exempt from ENDA.
ENDA is consistent with existing Federal law and requires
no changes in enforcement mechanisms. ENDA would grant the
Equal Employment Opportunity Commission (EEOC) and other
appropriate agencies the power to enforce its provisions. If an
aggrieved employee's complaint is not resolved by the EEOC, the
individual may then file suit.
MOST AMERICANS ALREADY SUPPORT ENDA
The Employment Non-Discrimination Act is also consistent
with the opinions of the American public. According to numerous
surveys, substantial majorities of likely voters in the United
States support an inclusive Federal employment non-
discrimination law. The Hart Research poll conducted in 2007,
found that 6 in 10 Americans specifically support ENDA. Voters
and their representatives in 12 States and more than 100
localities--areas comprising nearly 40 percent of the U.S.
population--have already taken action by adopting employment
protections for employees based upon their sexual orientation
and gender identity.
Businesses, too, have realized the importance of
nondiscrimination policies that protect against discrimination
based upon sexual orientation or gender identity; 177 of the
Fortune 500 companies have enacted non-discrimination policies
inclusive of sexual orientation and gender identity to protect
their employees. Companies such as AT&T, Bank of America, Best
Buy, Boeing, Coca-Cola, Dell, Ford Motor, Google, IBM, Kraft
Foods, Marriott International, Microsoft, Monsanto, Pfizer,
Procter & Gamble, and Target have all adopted non-
discrimination policies that include sexual orientation and
gender identity.
CONCLUSION
Employment discrimination affects all Americans, preventing
them from contributing to our Nation's workforce. Rampant
discrimination leaves many LGBT Americans with the choice of
either hiding their LGBT identity in the workplace or
disclosing their LGBT identity and risking discriminatory
treatment and harassment in the workplace.
The United States cannot afford to allow qualified people
to be irrationally excluded from employment simply because of
prejudice against their sexual orientation or gender identity.
The competitiveness of the Nation in the world market depends
on U.S. companies, and government employers, hiring and
retaining the best qualified employees.
We urge Congress to support the Employment Non-
Discrimination Act as a measured response to the problem of job
discrimination and the havoc wreaked upon American families by
job discrimination. Although we are unaware of efforts to
measure the cost to society of employment discrimination, it is
real. Ending both the toll that discrimination takes on
individuals and families, and on society, is a worthwhile
governmental and financial goal.
Passing ENDA into law would reaffirm America's longtime
commitment to the values of honest, hard work and fair
employment and would assure all Americans that they will be
judged upon the merits of their work, not on the people they
love or the gender they express.
In support of this goal, we respectfully ask that the
committee support ENDA as a critical step toward securing fair
treatment for all Americans.
Prepared Statement of Jennifer Chrisler, Executive Director,
Family Equality Council
Mr. Chairman and members of the committee, on behalf of the
thousands of families that support Family Equality Council, the
national organization working to ensure equality for lesbian, gay,
bisexual, and transgender (LGBT) families by building community,
changing hearts and minds, and advancing social justice for all
families, I am pleased to submit written testimony expressing our
support for the Employment Non-Discrimination Act of 2009. I would like
to thank especially Chairman Harkin, along with Ranking Member Enzi,
for convening this hearing on the Employment Non-Discrimination Act (S.
1584) (ENDA). It is imperative for this committee and Congress to
support workplace fairness for all Americans by addressing the issue of
employment discrimination based on sexual orientation and gender
identity, and to act decisively to end employment discrimination by
passing ENDA.
The mission of Family Equality Council is to create and protect
happy, healthy families. At the foundation of a healthy family is
economic security, the ability to earn a living, the economic stability
to provide for a dependent partner and children. Each year in the
United States, however, Americans are denied job opportunities, are
terminated, or experience on-the-job discrimination merely because they
are lesbian, gay, bisexual or transgender. This discrimination takes
place at many different types of employers, including private
employers, local governments, State governments, and companies large
and small. Only 12 States and the District of Columbia currently have
laws that specifically ban workplace discrimination based on sexual
orientation and gender identity. Another nine States have laws that ban
discrimination based on sexual orientation, but do not have clear
gender identity protections. Right now, this patchwork of State and
local laws protects only 40 percent of the U.S. population from
employment discrimination based on sexual orientation or gender
identity; 60 percent of Americans live in jurisdictions without
explicit job protections based on sexual orientation and gender
identity, or with protections that do not protect the LGBT community
comprehensively.
Data from the 2000 U.S. Census shows that approximately 20 percent
of LGBT Americans are parents, who are raising 2 million children
across the United States. Substantial concentrations of these families
live in Southern and Midwestern States, where they have limited or no
protection from workplace discrimination based on sexual orientation
and gender identity. Yet, like other parents, LGBT parents need to work
to support themselves and their families. For these families, workplace
discrimination has devastating consequences that reach beyond the well-
being and economic survival of individual LGBT workers to that of the
partners and children who depend upon them.
As a parent, I know what a struggle it would be to navigate such
vulnerability and still raise my twin boys to be the happy, healthy,
thriving pre-adolescents they currently are. My organization serves
parents all across the Nation who face this struggle. On their behalf,
I appeal to members of this committee to put S. 1584 on the fast track
to passage. Let not one more day go by in the United States without
protecting the ability of LGBT people to contribute to the workforce
and provide for their families without fear of arbitrary and
devastating discrimination.
In addition to its critical legal implications, this legislation
also has symbolic value that should not go unrecognized. A member of my
staff who has a gay dad who came out to her when she was 10 years old
speaks eloquently about the personal shame and stigma she endured
growing up in Arizona with a parent who she knew was unequal to other
dads in the eyes of her State. Do not let children who have LGBT
parents grow up feeling that their country does not value the economic
stability and success of their parents and their families. America can
do better than that. We have a long tradition of valuing and protecting
individuals and families for the contributions they make to the
workforce, through such laws as Title VII of the Civil Rights Act of
1964, the model which ENDA closely follows.
The actions of this committee today will send a message about
whether America is truly a land of opportunity for all who work hard.
LGBT people want to work and support their families. Like other
workers, they deserve to be judged on their skills and qualifications,
not on factors unrelated to job performance, such as sexual orientation
or gender identity. As a parent, and on behalf of all the LGBT parents
and children Family Equality Council serves, I urge this committee to
act immediately to send ENDA to the full Senate.
I would like to thank Chairman Harkin and Ranking Member Enzi again
for bringing this much-needed visibility in Congress to workplace
discrimination based on sexual orientation and gender identity. I would
also like to thank the committee for holding this hearing and for
taking the time to review Family Equality Council's written testimony
in support of the Employment Non-Discrimination Act of 2009. On behalf
of all our supporter families, I appreciate your efforts to ensure
workplace fairness for all Americans. Please feel free to contact me
regarding this important measure at any time.
Prepared Statement of Masen Davis, Executive Director,
Transgender Law Center
Mr. Chairman, Vice-Chairman, and members of the committee, we thank
Chairman Harkin and the committee for holding a hearing on the
Employment Non-
Discrimination Act (ENDA), S. 1584. On behalf of the Transgender Law
Center (TLC), we are writing to provide you with information showing
why it is crucial that you support this critically important
legislation.
TLC is a California statewide, non-profit, civil rights
organization advocating for transgender communities. Created in 2002 in
response to the overwhelming discrimination that transgender people and
our families face in nearly every institution in California, we utilize
direct legal services, education, community organizing, and policy and
media advocacy to overcome this discrimination and help the State
become one where every person's gender identity is respected and
supported. We provide legal information and assistance to over 1,000
transgender and gender non-
conforming people per year. Approximately 10-15 percent of the inquires
we receive are related to employment. We also provide technical advice
and assistance to private attorneys representing transgender and gender
non-conforming clients. Accordingly, TLC has extensive knowledge of the
widespread pattern of discrimination against transgender and gender
non-conforming workers.
In 2008, TLC conducted the first California statewide survey
documenting the financial, employment, health and housing experiences
of transgender Californians. With data from nearly 650 respondents, we
worked with a team of social scientists to create The State of
Transgender California: Results from the 2008 California Transgender
Economic Health Survey. The outcomes are stark. The State of
Transgender California confirms that transgender and gender non-
conforming people experience overwhelming discrimination and
marginalization in employment based on their gender identity. A copy of
The State of Transgender California is attached*, and the findings are
discussed throughout this statement.
---------------------------------------------------------------------------
* The report referred to may be found at
www.transgenderlawcenter.org/pdf/StateTrans
CA_report_2009Print.pdf.
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The protection that (ENDA) would provide is crucial to ensuring
that transgender and gender non-conforming employees are able to work
in an environment that is safe, respectful and professional, regardless
of gender identity.
TRANSGENDER PEOPLE ARE WELL QUALIFIED TO WORK IN A VARIETY OF
INDUSTRIES, YET FACE SIGNIFICANT ECONOMIC BARRIERS
The State of Transgender California reveals that transgender people
who responded to the survey have remarkably high education levels.
Respondents are almost twice as likely to hold a bachelor's degree as
the general California population. Ninety-four percent of the
transgender respondents over the age of 25 hold a high school diploma
or equivalent compared to 80 percent in California generally. Overall
46 percent of transgender people hold a Bachelor's degree or higher
compared to 29 percent of the general California population.
Nonetheless, transgender people are disproportionately represented
below the poverty line. According to the most recent State census,
approximately 11.7 percent of people 18-64 years old in California live
below the national poverty level of $10,400 for single adult
households. Yet 1 in 4 transgender people in California earn wages
below the national poverty level. This disconcerting trend continues,
even at higher education levels. The average income for all individuals
with a Bachelor's degree residing in California is over $50,000. The
average yearly income for transgender respondents with a Bachelor's
degree is below $30,000--40 percent less than the average college
graduate in California.
The State of Transgender California also found that respondents who
are employed work in a variety of fields and occupations. Thirty-nine
percent work in the private sector, 28 percent work in the non-profit
sector, 16 percent work in government, and 16 percent are self-
employed. Despite high education levels and experience in a broad range
of fields, less than half of respondents are currently employed full-
time. The overall unemployment rate for transgender persons was twice
the statewide average for the period this survey was administered.
TRANSGENDER PEOPLE FACE A WIDESPREAD PATTERN OF DISCRIMINATION
AND HARASSMENT IN EMPLOYMENT
Discrimination and harassment based on gender identity is a reality
for transgender and gender non-conforming workers. According to the The
State of Transgender California, two thirds of transgender
Californians, or 67 percent report some form of workplace harassment
or discrimination directly related to their gender identity. This
harassment and discrimination ranged from verbal harassment to unfair
scrutiny or discipline to termination of employment. Almost half of the
surveyed population reports that they had experienced some loss of
employment either directly as a result of their gender or as a possible
result of their gender identity.
There was no difference between experiencing discrimination and
type of employer. The widespread pattern of discrimination and
harassment faced by transgender workers exists in private companies, in
the non-profit sector, and in government.
DISCRIMINATION AGAINST TRANSGENDER EMPLOYEES IS UNDER-REPORTED
Despite widespread employ merit discrimination, only 15 percent of
those transgender Californians who reported some form of discrimination
or harassment filed a complaint. California has explicit protections
against workplace discrimination based on gender identity, and still
reporting rates are shockingly low. One can assume that reporting rates
in States without such protections are far lower. Without explicit
Federal protections, State and local employees are not only vulnerable
to discrimination, but are also less likely to speak out about it or
make complaints out of fear of retaliation by the employer, and a lack
of legal recourse for such discrimination or retaliation.
The findings in The State of Transgender California are made even
more compelling by the fact that the survey was conducted exclusively
in California. Our State has strong employment nondiscrimination laws
that support safer and more effective integration of transgender people
into the workplace. However, a lack of Federal protections has a
tremendous effect on the transgender community nationwide. Every week
transgender people are living in States without protective legislation
call TLC. These hard working Americans have little to no recourse in
their home States.
Allowing employers to make decisions about hiring, firing.
promotions, and discipline based on a worker's identity goes against
America's core value of equal opportunity. All too often, we see
transgender Americans forced out of successful careers when they
express their gender identity. Many transgender people fear and
experience discrimination and therefore must either hide who they are,
to the detriment of their health; leave jobs they love in order to
transition without risking termination; or face rampant harassment and
discrimination in their current workplace. Federal protection from
discrimination and harassment based on gender identity would help
liberate the transgender community from this stark reality. Such
legislation would allow transgender Americans to continue contributing
to our country's workforce without fear of being terminated simply
because of who we are.
We urge the committee to recognize this issue of basic fairness.
Transgender Americans deserve to be ourselves in a workplace where we
are judged exclusively on our ability to do our jobs. Work is an
integral part of our lives, of who we are, just like our gender. No
American should have to choose between their gender and their job.
Thank you for your time and for your attention to the serious
discrimination facing tens of thousands of workers in the United States
that passage of EndA would address.
Prepared Statement of Joe Laymon, Vice President, Chevron Corporation,
Human Resources
On behalf of Chevron Corporation, I am pleased to submit this
statement for the record regarding S. 1584, the ``Employment Non-
Discrimination Act of 2009.'' This legislation would prohibit
discrimination in employment on the basis of sexual orientation and
gender identity, which is consistent with the policies and practices
established by Chevron in this area. It is Chevron's policy to provide
equal employment opportunity to all applicants and employees. No one
should ever be subject to discrimination on the basis of race,
religion, color, national origin, age, sex, gender identity,
disability, veteran status, political preference, and sexual
orientation.
Chevron is the second-largest U.S.-based integrated energy company,
conducting business in more than 100 countries, producing crude oil,
natural gas and other products essential for economic growth and
progress. Our diverse and highly skilled global workforce consists of
approximately 62,000 employees, of whom 27,000 work here in the United
States. Chevron works to maintain an inclusive work environment and we
actively embrace a diversity of people, ideas, talent and experience.
Diversity and inclusion are a part of Chevron's core values. Our
commitment is laid out in detail in several Chevron policies, from the
Chevron Way to formal policies on employment, nondiscrimination and
anti-harassment.
Chevron was the first major energy company in the United States to
add ``sexual orientation'' to its equal employment opportunity
policies. We have also extended our domestic-partnership benefits
package to include same-sex couples and their families in the United
States, and extended our equal employment opportunity policies to
include ``gender identity.'' We have rigorous and mandatory employee
training to re-inforce our policies; encourage reporting of EEO
concerns, including by maintaining a toll-free Hotline; and maintain
extensive non-retaliation policies for reporting such concerns.
We believe that this commitment is both the right thing to do and
key to our ongoing success as a business. We operate in one of the most
competitive industries in the world and our diverse and talented
workforce is our most important asset. The richness of our culture and
diversity increases our ability to achieve our vision and enhances
Chevron's work environment. Chevron believes that as a company we can
leverage our differences and similarities to achieve new perspectives
and strengths, to reach common objectives.
In our view, the equal employment opportunity principles espoused
in the Employment Non-Discrimination Act of 2009 would not require any
changes in our existing policies, would promote practices that we
believe in and follow, and Chevron continues to support the passage of
this legislation. Please contact me if you have questions. I would be
happy to provide more detail about our policies, practices, and
commitment to a diverse workplace.
Prepared Statement of the National Center for Transgender Equality and
the National Gay and Lesbian Task Force--National Transgender
Discrimination Survey
Employment and Economic Insecurity
Transgender people are targets of discrimination in many areas of
their lives; this marginalization exposes them to tremendous social and
economic insecurity. Until now, data on the prevalence and character of
this discrimination has been limited to small studies and anecdotal
reports. In the first comprehensive national effort to document this
problem, the National Center for Transgender Equality and the National
Gay and Lesbian Task Force launched a 6-month data collection process,
interviewing 6,450 transgender people via an extensive questionnaire
that covered critical topics such as employment, education, health
care, housing, public accommodation, criminal justice, family life and
access to government documents. Our final sample included residents of
all 50 States, Puerto Rico, Guam and the U.S. Virgin Islands. Data
gathered from respondents was compared to U.S. Census Bureau and
Department of Labor data.
KEY FINDINGS
Double the rate of unemployment: Survey respondents
experience unemployment at twice the rate of the population as a whole.
Near universal harassment on the job: Ninety-seven percent
of those surveyed reported experiencing harassment or mistreatment on
the job.
Significant losses of jobs and careers: Forty-seven
percent had experienced an adverse job outcome, such as being fired,
not hired or denied a promotion.
High rates of poverty: Fifteen percent of transgender
people in our sample lived on $10,000 per year or less--double the rate
of the general population.
Significant housing instability: Nineteen percent of our
sample have been or are homeless, 11 percent have faced eviction and 26
percent were forced to seek temporary space.
EMPLOYMENT CHALLENGES
Unemployment and Loss of Jobs (26 Percent lost their jobs because they
are transgender)
Transgender people are unemployed at alarming rates. Overall 13
percent of respondents were unemployed, nearly double the national
average at the time of the survey. This is even more acute for
respondents who are Black (26 percent), Latino (18 percent) and
Multiracial (17 percent).
Forty-seven percent of survey respondents experienced an adverse
job action because they are transgender--they did not get a job, were
denied a promotion or were fired--that directly impacted their
employment status. A staggering number of the people surveyed, 26
percent, lost their jobs due to their gender identity/expression.
Particularly hard hit were those who were Black (32 percent) or
Multiracial (37 percent).
Mistreatment and Harassment at Work--A Universal Experience (97 percent
were mistreated at work because they are transgender)
Ninety-seven percent have experienced mistreatment, harassment, or
discrimination on the job including: invasion of privacy, verbal abuse,
and physical or sexual assault.
Poverty (Twice the national average earn less than $10,000/year because
they are transgender)
Study respondents experience poverty at a much higher rate than the
general population, with more than 27 percent reporting incomes of
$20,000 or lower and more than 15 percent reporting incomes of $10,000
or lower. Only 7 percent of the general population reports incomes of
$10,000 or lower.
negative outcomes as a result of employment discrimination
Housing Instability
Survey respondents experienced a series of negative outcomes, many
of which stem from challenges they face in employment. A large
percentage of our sample reports experiencing housing insecurity due to
their gender identity, with almost one-fifth becoming homeless because
they are transgender.
Lack of Health Insurance and Access to Appropriate Care
Employment issues also impact transgender people's access to health
care. Transgender and gender non-conforming people do not have adequate
health insurance coverage or access to competent providers. Respondents
in our sample are uninsured at the same rate of the general population
in the United States--19 percent--but only 40 percent of the sample
enjoys employer-based insurance coverage, compared to 62 percent of the
population at large. This figure underscores how high unemployment
creates multiple liabilities for our sample.
SUMMARY
Employment protections are paramount. Transgender people face
discrimination, harassment and anti-transgender violence in many areas
of their lives. These conditions create significant barriers to
employment and lead to devastating economic insecurity.
Basic employment protections for transgender people provide a
crucial foundation for dignified, economically secure lives. Employment
should be based on one's skills and ability to perform a job. No one
deserves to be unemployed or fired because of their gender identity or
expression.
SAMPLE DEMOGRAPHICS
Our sample reflects the geographic and racial and ethnic diversity
of the Nation as a whole. The maps below show that the geographic
distribution of our sample very much parallels that of the general
population. Further, the 2007 American Community Survey reports that
75.1 percent of the Nation identifies as white and 24.9 percent
identify as people of color across a range of racial and ethnic
categories. Transgender and gender non-conforming people in the NCTE/
Task Force sample identify as white at a percentage of 76 percent,
while 24 percent of respondents identify as one or more of the
following: Black/African-American, American Indian or Alaska Native,
Hispanic or Latino, Asian or Pacific Islander, Arab or Middle Eastern,
Multiracial or Mixed Race.
METHODOLOGY NOTE
A project team comprised of researchers, LGBT advocates and trans-
community leaders distributed on-line links to our survey through a
network of more than 800 trans-serving and trans-led advocacy and
service organizations, support groups, list-serves and online social
networks. Nearly 2,000 paper surveys were distributed to hard-to-reach
transgender and gender non-conforming populations. A total of 6,456
completed questionnaires were included in the final data set.
Prepared Statement of Nancy Ratzan, President, National Council
of Jewish Women (NCJW)
The 90,000 members and supporters of the National Council of Jewish
Women (NCJW) strongly support the Employment Non-Discrimination Act
(ENDA). ENDA protects basic civil rights in the workplace by
prohibiting discrimination based on sexual orientation and gender
identity.
For over a century, NCJW has been at the forefront of social
change, speaking out on important issues of public policy. Inspired by
our Jewish values, NCJW has been, and continues to be, an advocate for
the needs of women, children, and families and a supporter of equal
rights for all, regardless of sexual orientation and gender identity.
Our national resolutions state: ``discrimination on the basis of race,
gender, national origin, ethnicity, religion, age, disability, marital
status, sexual orientation or gender identity must be eliminated.''
ENDA is an important step toward that goal.
Federal law currently protects employees from discrimination on the
basis of race, religion, gender, national origin and disability, but
not sexual orientation or gender identity. ENDA remedies this unjust
gap in Federal non-discrimination protections by prohibiting employers,
labor unions and employment agencies from using an individual's sexual
orientation or gender identity as the basis for employment decisions
including hiring, promotion, and firing.
ENDA does not create ``special rights'' for gay Americans. It
simply extends the same legal protections against discrimination
provided for other individuals who have historically been denied equal
employment opportunities. ENDA provides exemptions for small
businesses, religious organizations, and the military and explicitly
prohibits the adoption of quotas.
All people should have the right to seek employment and to work
free from unfair and prejudicial practices. Job performance and ability
are the only factors that should influence employment decisions. The
National Council of Jewish Women supports and urges immediate passage
of a strong Employment Non-Discrimination Act.
Prepared Statement of Allyson Robinson, Associate Director of
Diversity, Human Rights Campaign (HRC)
Chairman Harkin and members of the committee, my name is Allyson
Robinson. I serve as Associate Director of Diversity at the Human
Rights Campaign (HRC), the Nation's largest lesbian, gay, bisexual, and
transgender civil rights advocacy organization, where I am staff lead
for issues of concern to the transgender community. Prior to my tenure
at HRC I was an ordained Baptist minister, serving congregations in the
United States and Europe for nearly a decade. I am a 1994 graduate of
the U.S. Military Academy at West Point (nominated by Senator Arlen
Specter) and served 5 years as a U.S. Army officer in Europe and the
Middle East. I am also a transgender woman.
A recent, first-of-its-kind comprehensive national survey of the
transgender community \1\ found that we are unemployed at distressing
rates--overall, 13 percent of respondents, nearly twice the national
average at the time of the survey, reported being out of work. Even
more alarming is the finding that 97 percent had experienced harassment
or mistreatment on the job solely due to their gender identity. As a
result, 15 percent of respondents reported incomes below $10,000 a
year, again, over double the rate of the general population.
---------------------------------------------------------------------------
\1\ National Center for Transgender Equality and National Gay and
Lesbian Task Force, ``National Transgender Discrimination Survey,
Preliminary Results,'' http://docs.google.com/
fileview?id=0BwKC1El_YwUWOTc1M2M2ZGQtN2JhMS00YTc0LWI2ODctNWI3MDE4NGE
wOWJl&hl=en (accessed November 2, 2009).
---------------------------------------------------------------------------
Behind each of these statistics are stories, thousands of them.
They are the stories of men and women who worked hard to prepare
themselves in America's high schools, colleges, and universities. (A
2008 study of the transgender population in California by the
Transgender Law Center found we are almost twice as likely to hold a
bachelor's degree as the general population.) \2\ They entered the
workforce with high hopes and high ideals, devoted themselves to
building successful careers and productive lives, and earned the
respect of their managers and peers along the way--only to see it all
vanish the moment they made the agonizing decision to be open and
honest about who they were.
---------------------------------------------------------------------------
\2\ Transgender Law Center, ``The State of Transgender California
Report: Results from the 2008 California Transgender Economic Health
Survey,'' http://www.transgenderlawcenter.org/pdf/
StateTransCA_report_2009Print.pdf (accessed November 2, 2009).
---------------------------------------------------------------------------
But standing unseen behind these brave men and women are others--
wives, husbands, and children--who saw their own hopes and dreams
dashed by discrimination as well. These families are frequently ignored
or forgotten when discrimination against transgender people is
discussed, but their suffering is very real. Most Americans assume that
a married or partnered adult's decision to change genders necessarily
means divorce from their spouse and estrangement from their children.
Today, this is far less likely to be the case than it was decades ago.
As a result, workplace harassment and employment discrimination against
transgender people has a negative impact that increasingly reaches far
beyond the target to the families they support, and that have supported
them through their gender transition.
My own family's story illustrates the point. I have been married to
my wife, a West Point classmate of mine, for 15 years, and we have four
young children together. She and the children were my closest allies
and strongest supporters throughout my gender transition. But in
December, 2007 I began a transition of another kind that would test us
all: I completed a graduate degree at Baylor University and began my
first job search as an openly transgender woman.
As a family, we had prepared well for this career transition. We
saved up several months' worth of income, organized our household for a
potential move, and put our children's school records in order. I spent
much of my last semester of graduate school researching the job market,
working with a career counselor, and expanding my network. Given my
West Point degree, my excellent military record, my high academic
achievements, and my proven leadership ability in the non-profit
sector, we believed I would receive a job offer within a relatively
short amount of time.
Unfortunately, this proved not to be the case. Though I sent out
dozens of resumes, I was rarely asked to interview and received no
offers. As our savings began to dwindle, we were forced to look to our
birth families to provide housing for our family of six. Though my own
parents were very supportive of my gender transition and would have
loved to host us, their homes were simply too small to accommodate our
family. My wife's parents had a large home, but would only allow my
wife and children to live with them; they refused to support my gender
transition, pressured my wife to divorce me, and would not even speak
to me. As a result, we had no choice but to enter into a very difficult
arrangement. My wife and the children moved in with her parents in
Billings, MT, a home environment which was openly hostile to my gender
transition, while I moved in with my mother in Phoenix, AZ. We endured
this painful separation for almost 10 months.
Though I was eventually offered an excellent position and our
family was reunited, the effects of our forced separation, particularly
on our children, linger to this day. My work requires me to travel
often, and the children suffer tremendous separation anxiety, even if
I'll only be away from them overnight. Recently, while watching a
children's film with them which featured a subplot about a child
separated from his parents, my 7-year-old daughter began to weep
uncontrollably and could not be consoled. And this is to say nothing of
the strain that unemployment and separation placed on our marriage
relationship or our financial situation. We were forced to spend much
of our retirement savings to support ourselves, money we had set aside
years ago while still serving in the Army. Pastoral counseling, offered
by our church, has helped my family begin to overcome the emotional
effects of this painful experience.
My work with the Human Rights Campaign takes me all over the United
States, speaking with groups of transgender people and listening to
their stories. I've heard stories of marriages which survive the very
real challenges presented by a spouse's gender transition, only to
collapse under the pressure of job termination and prolonged
unemployment. I've listened to a transgender man describe having to
live with his partner and their 2-year-old son out of their van for
nearly a year because he was fired from his job in journalism for
transitioning and could not find work. I've hugged a transgender woman
while she told me through tears of being forced because of
underemployment and poverty to choose between purchasing medication she
herself needed or asthma medicine for her son. I've listened to
transgender people tell of enduring years of brutal workplace
harassment, terrified to seek a more inclusive employer because they
believed they'd never find another job, who turned to alcohol or drugs
to deal with the trauma. The effect of this on their families was just
as traumatic. Many of the stories behind the statistics are like this--
stories of sons and daughters, husbands and wives, who suffer
needlessly because someone they love has chosen to follow the medically
prescribed path to health, wholeness, and inner peace.
Our family has been very fortunate, and yet even we have learned
that a happy ending alone sometimes doesn't heal the pain of the
journey. To be sure, we aren't the only family that has had to endure a
long separation--families do it every day and suffer the negative
consequences. In our case, however, as with that of so many families
like ours, these experiences are unnecessary and avoidable. It should
not be so difficult for transgender people to find meaningful work
through which we can support ourselves and our families. Our decision
to live in ways that are honest, faithful to ourselves, and supported
by the very best wisdom America's medical and mental health
professionals can offer, should not be a barrier to gainful employment.
It is perhaps a sad fact of human nature that we tend to
marginalize those whom we do not understand. In America, however, we
have a proud history of rising above this nature and striking down
policies and practices based on unawareness, misinformation, or bias. I
urge the Senate to add to that proud history by passing the Employment
Non-Discrimination Act in its fully transgender inclusive form as soon
as possible.
Thank you most sincerely for receiving this testimony and holding
this important hearing.
Prepared Statement of Joe Solmonese, President, Human Rights Campaign
Mr. Chairman and members of the committee, my name is Joe
Solmonese, and I am the president of the Human Rights Campaign,
America's largest civil rights organization working to achieve lesbian,
gay, bisexual and transgender (LGBT) equality. By inspiring and
engaging all Americans, HRC strives to end discrimination against LGBT
citizens and realize a nation that achieves fundamental fairness and
equality for all. On behalf of our over 750,000 members and supporters
nationwide, I am honored to submit this statement in support of S.
1584, the Employment Non-Discrimination Act (``ENDA'').
Work is central to all of our lives. Our jobs enable us to support
our families, develop our talents, contribute to our communities and
our country, and realize our dreams. We all share the challenges of an
economic downturn. But for far too many hardworking LGBT people, those
pressures are intensified by the fear that they can be denied job
opportunities, fired or otherwise be discriminated against just because
of who they are. LGBT Americans, like everyone else, want their success
to reflect their skills, ambition, and dedication. But this modest goal
is not a reality for many LGBT people. In 29 States, it is still legal
to fire someone because of their sexual orientation, and in 38 States,
it is legal to fire someone because of their gender identity.
Because an employer in these States may legally fire, refuse to
hire, or fail to promote an employee based upon sexual orientation or
gender identity, LGBT people are at a great disadvantage in the
workplace. For instance, studies show that sexual orientation has a
negative impact on earnings among individuals with similar education
and background. A 2007 survey of these studies found that gay men earn
from 10 percent to 22 percent less than heterosexual men with the same
education, experience, race, occupation, and geographic location.
Across this country, lesbian, gay, and bisexual employees must
avoid simple actions that their heterosexual coworkers take for
granted--placing a family picture on a desk; describing weekend plans
over lunch; commuting to work with a partner; wearing a ring. For a
transgender employee, the challenge is even greater. A person could
have to forego living in her true gender at all, whether on or off of
the job, in order to stay employed.
It is time for a Federal law that would make it illegal to fire a
LGBT person just because of who they are. ENDA will bring the value of
meritocracy to a community that has had to do without it for too long.
ENDA is a narrow, focused piece of legislation modeled after Title
VII of the Civil Rights Act of 1964, the landmark legislation which
protects individuals against employment discrimination on the bases of
race and color, as well as national origin, sex, and religion. Title
VII is a long-standing, respected employment statute with which
employers, employees, courts and the American people are very familiar.
By following this model, ENDA provides a clear roadmap to employers and
employees as to their obligations and available remedies under the law,
and treats the issue of discrimination against LGBT people in the same
way as other victims of workplace bias. ENDA does not create any
``special rights.'' It simply extends to all Americans basic employment
protection from discrimination based on irrational prejudice.
Support for this legislation is strong. Polls demonstrate
overwhelming public support for the principle of equal job
opportunities for lesbian and gay Americans (89 percent in a May 2008
Gallup poll). Six in ten Americans specifically support the Employment
Non-Discrimination Act (Hart Research poll, January-February 2007),
including majorities of white (58 percent), African-American (61
percent), and Latino (56 percent) voters, as well as self-described
Democrats (70 percent), independents (55 percent), and Republican women
(52 percent).
America's top corporations and small businesses know, in order to
remain competitive, they must recruit and retain the best possible
talent, including members of the LGBT community. As of September 2009,
434 (87 percent) of the Fortune 500 companies have implemented non-
discrimination policies that include sexual orientation. Two hundred
and seven (41 percent) of those companies also cover gender identity in
their policies--up from only 3 in 2000. Currently, 80 large
corporations and 57 small businesses have joined the Business Coalition
for Workplace Fairness in support of ENDA. Among this group of
corporations from a wide range of geography and industry are: BP
America, Citigroup, Coors Brewing, Ernst & Young, General Mills,
General Motors, Kaiser Permanente, Marriott International, Microsoft,
Nike and Time Warner. These companies understand that fairness and
diversity are good for business.
The civil rights community also stands behind the Employment Non-
Discrimination Act. The Leadership Conference on Civil Rights, a
coalition of over 200 civil rights, religious, labor, and women's
rights organizations, has endorsed ENDA. In addition, such well known
leaders of the civil rights movement as Coretta Scott King and Rep.
John Lewis have spoken out in support of ENDA in the past.
Some of ENDA's critics would like to misrepresent it as
inconsistent with religious liberties. However, many communities of
faith also support fairness. Numerous Christian and Jewish
organizations and denominations, including The Interfaith Alliance;
Presbyterian Church U.S.A.; Union for Reform Judaism; United Church of
Christ; and the United Methodist Church have taken a strong stand
against discrimination.
ENDA, like other civil rights laws, is sensitive to religious
organizations and contains a very broad religious exemption. The act
exempts the same religious entities that are exempt from the religious
discrimination provisions of Title VII of the Civil Rights Act of 1964.
As a result, houses of worship, parochial and similar religious schools
and missions, as well as positions at other entities owned by or
closely affiliated with a religious organization are not subject to
ENDA's prohibition of discrimination based on sexual orientation or
gender identity. In short, ENDA in no way interferes with a religious
entity's ability to follow its beliefs in making employment decisions.
We are a country predicated on equality. And over the years, we
have embraced a more inclusive vision of what that means. In the past
five decades, Congress and the President have recognized that race,
sex, national origin, religion, age and disability are irrelevant to
the ability of a person to do a job and have enacted laws to address
discrimination based on those characteristics. These civil rights laws
have improved job opportunity for millions of Americans, raising
standards of living and providing hope of a better future for each
successive generation. Yet, there remains no Federal law protecting
LGBT people from being fired from a job, being denied a promotion, or
experiencing harassment at work simply because of who they are. The
time has come for Congress to finally act and ensure that
discrimination has no place in the American workplace.
Prepared Statement of Meghan Stabler
Chairman Harkin and members of the committee, thank you for this
opportunity to submit written testimony in support of S. 1584, the
Employment Non-Discrimination Act (ENDA), critical but incredibly
simple legislation which would protect people from workplace
discrimination based on their sexual orientation or gender identity. I
commend the committee for holding the first hearing on a version of
ENDA that protects lesbian, gay, bisexual and transgender people.
Protecting Americans from gender identity-based employment
discrimination is critically important. Lesbian, gay, bisexual and
transgender people face a high risk of job discrimination and have no
adequate remedy in Federal law. This bill would provide critically
needed job protections.
My statement will focus on the discrimination faced by so many
transgender men and women in the workplace, and its devastating
implication on personal finance, health care insurance availability and
even homelessness. My testimony, and that of others, is given in the
hopes that you move forward with workplace protections, for all
lesbian, gay, bisexual and transgender workers and help stop
discrimination in any aspect of employment.
My name is Meghan Stabler; first and foremost I am a former
business executive, having worked for major corporations throughout
Europe and North America for the last 27 years.
Before transitioning my gender from male to female to resolve an
inner sense of gender conflict that had been known to me since the age
of 5, I enjoyed an amazing career with respect, increasing
responsibilities, compensation, and an unlimited career path. I was
married and have a wonderful teenage daughter.
Second, I am a woman, however, I am also labeled transgender, and
more specifically transsexual, meaning I transitioned genders, as I
mentioned, in my case from male to female. Simply and solely, because I
am transgender, employers are able to fire, refuse to hire, demote, or
refuse to promote or otherwise discriminate against me in 38 States,
despite my job performance, history of accomplishments or the merits of
my ability to perform my job.
My ability to finance health care coverage, and to provide myself
with a home, is clearly linked to my ability to work and remain
employed. Given the current economic climate in the USA this is tough
enough; however because of discrimination in the workplace against
transgender employees, it is harder still. Many transgender people face
discrimination in the workplace, sometimes with employers terminating
their jobs within hours of their coming out and ``telling'' their
employer that they are transgender. Losing a job impacts access to
health care, and faced with dwindling finances, can ultimately lead
transgender people to homelessness. In fact, during 2006, the
Transgender Law Center conducted a survey of transgender people living
in San Francisco which discovered the following: only 25 percent of the
transgender people surveyed were employed full-time, and altogether 35
percent were unemployed. Only 4 percent made more than the estimated
median income for a San Franciscan. This is a remarkable statistic,
considering that the wider Bay Area is considered ``home'' to my
profession of software and even more remarkable as San Francisco is
considered one of the most progressive cities in North America.
I, too, have experienced discrimination during and, following my
transition from male to female. Let me share my story.
Since my earliest memories I felt different.
I did not feel right about my gender.
This is known medically as Gender Identity Disorder.
Simply put, my emotional and psychological gender was not in
alignment with my genetic, physiological sex. This is not an acquired
condition; rather, it is an intrinsic part, a lifelong aspect of my
being, something that I, and many others are born with. Despite all of
the behaviors that I learned in trying to deny my true identity and
feelings, this condition had been the source of unease and discomfort
throughout my life. Eventually I received treatment through accepted
medical practices for Gender Identity Disorder. While the types of
medical or other treatments range widely, I took the necessary steps to
change my physical gender from male to female. Doing so did not change
the person I was or my ability to perform my job, or as a matter of
fact, any job, but finally dealing with this, lifted a huge weight off
my shoulders.
As a male in the workplace I enjoyed what I call ``entitlements'',
I enjoyed a successful career, in meetings I was seen as a leader and I
had employment protections. As I began to transition it changed.
Initially there was no policy of protection in my place of work, but
over time my employer was willing to place EEO and Sexual Harassment
policies in place. As a female in the workplace I see the ``other
side'' of the business table, yet with a societal stigmatism labeled
upon me as transgender, and like the majority of transgender persons I
know, I have faced workplace issues.
Since I openly transitioned, I have received a number of job
demotions: I am no longer a senior executive.
As a result, I have seen significant salary reductions, along with
reductions in my participation and involvement in meetings, business
transactions and customer meetings. As a result, I face a monthly
struggle to keep my house payments and related bills, while ensuring
that I pay court-ordered child support. I have had to use much of my
savings to make up shortfalls and bill payments, including my
daughter's educational needs.
Having a job is so important to transgender people, without the
income we may not have access to essential medications and treatments,
or even expensive surgeries that enable us to slip back into society in
the new ``legal'' gender. Overall, I have been one of the fortunate
few, yet I would like to cite a number of examples from friends that
have not been so lucky.
The first is a story of a transgender friend who transitioned over
5 years ago. She was a Chief Technology Officer in a software
development company, but upon announcing her need to transition from
male to female, she was terminated from her position. She faced
immediate workplace discrimination.
She relocated in the hopes that she could start a new life, without
her male history following her. Over the coming months that evolved
into years; her life savings dwindled to nothing despite her applying
for jobs not only within her home State, but across the country. She
was overlooked for many positions, and for those for which she received
an initial call back, she never received a second interview. She used
her remaining savings to complete a variety of necessary surgeries, as
she still needed to resolve her inner need to change gender. With
escalating costs and a declining source of finances, she became
increasingly suicidal. Without a job and income, completing surgery was
out of reach. She was very educated and qualified for positions; her
knowledge of technology never changed between the day she announced
transition and the day prior to transition, yet she was never hired for
a job for over 5 years.
Second is the experience of another good friend of mine, a
commercial pilot, who was placed on ``paid-administrative leave''
within 2 hours of talking to her companies HR executives about her
intent to transition genders. Within 4 days, the company asked her to
tender her resignation.
Third is the story of another friend, who was once a manufacturing
engineer in a predominantly-male business. On announcing her need to
transition, she was immediately terminated. She needed to complete
transition, yet her finances were reduced and she found it increasingly
hard to get a job in the line of work in which she was experienced. She
relocated, but still could not find a position equal to her former job.
After 2 years, despite her engineering expertise, she was working as a
housekeeper in a Denver hotel.
For transgender (transsexual) people, gender transition is not a
choice, but is rather an essential need.
Like other transgender people, I have been, and am still a
productive, responsible, dedicated, loyal and passionate employee. I
wish only to be measured on the merits of the job I do, and the
capability to perform to the best of my ability. It is only when we are
subject to discriminatory actions and a lack of workplace protections
that our work begins to suffer.
Without work, we lose income.
Without income or savings, we lack access to affordable healthcare,
and sometimes healthcare is not even available to us from certain
providers just because of our transitional history or status.
Without healthcare we often cannot complete transition. With the
stress placed on us, often suicide is a considered option.
I hope that you are able to comprehend from mine and other stories
how much lesbian, gay, bisexual and transgender Americans need you to
pass the Employment Non-Discrimination Act.
For every example of workplace discrimination you hear or read
today, there are thousands, more across the country who have faced, and
continue to face discrimination in silence, often without any recourse
at all. Their voices cannot be heard today, but I assure you that they
are watching, listening, and reading what happens with regards to this
bill. They are productive Americans, they are hard working Americans.
They, like I, are asking for the right to work.
I hope that we can move forward and finally end workplace injustice
and discrimination based on a person's Sexual Orientation or Gender
Identity and finally pass S. 1584 to ban discrimination against
lesbian, gay, bisexual, and transgender people in the workplace and to
protect LGBT people from being fired, refused a job, or harassed in the
workplace.
In closing, I thank the committee for holding this important
hearing on the Employment Non-Discrimination Act and for allowing me to
submit written testimony in favor of this important legislation. I
would like to leave you with this quote from Robert Francis Kennedy:
``Each time a man stands for an ideal, or acts to improve the
lot of others, or strikes out against injustice, he sends a
tiny ripple of hope, and crossing each other from a million
different centers of energy and daring, those ripples build a
current which can sweep down the mightiest walls of oppression
and resistance.''
______
U.S. Government Accountability Office (GAO),
Washington, DC,
October 1, 2009.
Hon. Tom Harkin, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate.
Hon. Susan M. Collins,
U.S. Senate.
Hon. Jeff Merkley,
U.S. Senate.
Subject: Sexual Orientation and Gender Identity Employment
Discrimination: Overview of State Statutes and Complaint Data
Federal law prohibits discrimination in employment based on a
number of factors, including race, color, religion, sex, national
origin, disability, and age. Although Federal law does not prohibit
discrimination in employment on the basis of sexual orientation,\1\ 21
States \2\ and the District of Columbia provide such protection in
their statutes. Thirteen of these States \3\ also have statutes
explicitly prohibiting discrimination in employment on the basis of
gender identity.\4\ Based on your request to update our 2002 report on
this subject,\5\ we (1) reviewed State statutes that prohibit
discrimination in employment on the basis of sexual orientation and
gender identity, including the characteristics, coverage, and
exclusions of the laws, and (2) gathered information concerning the
number of administrative employment discrimination complaints filed in
each State--both the total number and the number of complaints listing
sexual orientation or gender identity as one of the claimed bases for
discrimination.
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\1\ Executive Order 13087, issued on May 28, 1998, amended
Executive Order 11478 to prohibit discrimination based upon sexual
orientation within executive branch civilian employment.
\2\ These States are California, Colorado, Connecticut, Delaware,
Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota,
Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode
Island, Vermont, Washington, and Wisconsin.
\3\ Except where otherwise specified, we use the term ``State''
throughout this correspondence to refer to the District of Columbia as
well as to the 21 States.
\4\ Additionally, some States may permit gender identity complaints
to be filed under provisions prohibiting discrimination based on sex,
sexual orientation, or disability.
\5\ U.S. General Accounting Office, Sexual Orientation-Based
Employment Discrimination: States' Experience with Statutory
Prohibitions, GAO-02-878R (Washington, DC: July 9, 2002).
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In response to your request, we utilized legal databases to
determine which States have laws specifically prohibiting
discrimination in employment on the basis of sexual orientation and
gender identity and compared our results with other organizations'
lists.\6\ We sent questionnaires to the 22 States we identified having
such laws. We asked the States to verify information concerning their
statutes and to provide us with data on the numbers of administrative
employment discrimination complaints filed for the most recent 3 years
for which data is available. All data are as reported by the State
agency; we did not verify these data. We created a table for each State
incorporating each State's responses and other information and sent
these tables to the States for their comments, which we incorporated as
appropriate. We conducted our review during August and September 2009.
---------------------------------------------------------------------------
\6\ Specifically, we compared our research to information compiled
by the Human Rights Campaign and the National Gay and Lesbian Task
Force.
---------------------------------------------------------------------------
Of the 22 States that have laws prohibiting discrimination based on
sexual orientation, the statutory definitions in all but one State
(Minnesota),\7\ define ``sexual orientation'' as including in some form
the categories of heterosexuality, homosexuality, and bisexuality. All
but five \8\ of the statutory definitions include people who are
perceived by others to be, or are identified with, a specific
orientation, whether or not they identify with that orientation.
Therefore, for instance, a person who is discriminated against because
he is incorrectly perceived by an employer to be homosexual, but who is
actually heterosexual, may still file an employment discrimination
complaint based on sexual orientation.
---------------------------------------------------------------------------
\7\ Minnesota's statute defines ``sexual orientation'' in part as
``having or being perceived as having an emotional, physical, or sexual
attachment to another person without regard to the sex of that
person,'' or ``having or being perceived as having a self-image or
identity not traditionally associated with one's biological maleness or
femaleness.'' Minn. Stat. Sec. 363A.03, Subd. 44.
\8\ The States that do not include such language in their
definitions are Delaware, the District of Columbia, Maryland, Vermont,
and Washington.
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Thirteen of the 22 States have laws explicitly prohibiting
discrimination based on gender identity.\9\ Gender identity generally
refers to a person's identity and/or appearance, whether or not
associated with a person's sex at birth. Five of these States \10\ do
not provide a separate statutory definition for ``gender identity.''
\11\ Some States reported that although their State statutes may not
specifically prohibit discrimination based on gender identity, the
State may nevertheless accept gender identity employment discrimination
complaints under another basis, such as sexual orientation or sex. For
instance, Massachusetts reported that it will accept, investigate, and
adjudicate gender identity cases under the section of Massachusetts law
prohibiting employment discrimination on the basis of sex. Wisconsin
reported that, depending on the facts of the particular situation, an
individual with a gender identity issue may be able to bring a claim of
discrimination based on disability or sex.
---------------------------------------------------------------------------
\9\ These States are California, Colorado, the District of
Columbia, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico,
Oregon, Rhode Island, Vermont, and Washington.
\10\ Colorado, Illinois, Maine, Minnesota, and Oregon.
\11\ Colorado's statute refers to ``transgender status'' rather
than ``gender identity.''
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Under the State statutes, the number of employees an employer has
is a factor in determining coverage. Nine States cover employers having
one or more employees.\12\ Only four States require more than six
employees for coverage.\13\ In Illinois, the minimum number of
employees an employer must have in order for the statutory protection
from employment discrimination on the basis of sexual orientation and
gender identity to be in effect is a different number than for the
statutory protection for other bases of employment discrimination.
Specifically, the sexual orientation discrimination and gender identity
provisions apply only to a private employer with 15 or more employees,
whereas an employer need only employ one person to invoke the
application of the provisions providing protection from employment
discrimination on the basis of sexual harassment or physical or mental
handicap unrelated to ability.
---------------------------------------------------------------------------
\12\ Some State laws explicitly state ``one.'' Where a specific
number was not stated in the law, the States confirmed that the minimum
number of employees for coverage was one.
\13\ Washington requires 8 and Illinois, Maryland, and Nevada each
require 15.
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All the States provide at least a limited exemption for employers
that are religious organizations, although the exemptions may vary in
scope.\14\ They generally permit religious organizations to give
preference to those of the same religion in hiring. In Maryland, the
statute mentions sexual orientation specifically in exempting religious
organizations from the employment non-discrimination provisions.\15\
Washington provides a clear exception for religious organizations.\16\
Minnesota law states that for religious or fraternal organizations, if
sexual orientation is a bona fide occupational qualification for
employment, the sexual orientation discrimination provisions do not
apply; moreover, a not-for-profit religious association is exempt from
these provisions except when the association is engaged in secular
business activities unrelated to the religious and educational purposes
for which it is organized.\17\
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\14\ We are using the term ``exemption'' to include any cases in
which a State statute provides any sort of exception, however limited,
for religious organizations.
\15\ Under Maryland statute the employment non-discrimination
provision does not apply to ``[a] religious corporation, association
educational institution or society with respect to the employment of
individuals of a particular religion or sexual orientation to perform
work connected with the carrying on by such corporation, association,
educational institution or society of its activities.'' Md. Ann. Code
art. 49B, Sec. 18(2).
\16\ Under Washington law, the definition of employer ``does not
include any religious or sectarian organization not organized for
private profit.'' Rev. Code Wash. Ann. Sec. 49.60.040(3).
\17\ Minn. Stat. Sec. Sec. 363A.20, Subd. 20 and 363A.26(2).
---------------------------------------------------------------------------
All but one (Massachusetts) of the States include employers that
are non-profit organizations in the coverage of their sexual
orientation and gender identity nondiscrimination statutes. However,
these States may exempt specific types of organizations. For example,
Minnesota exempts nonpublic service organizations whose primary
function is providing occasional services to minors.\18\ New Hampshire
exempts exclusively fraternal and social clubs,\19\ and Maryland and
Nevada exempt private membership clubs.\20\ Finally, all the State
statutes include coverage of State and local government employers.
---------------------------------------------------------------------------
\18\ Minn. Stat. Sec. 363A.20, Subd. 3.
\19\ N.H. Rev. Stat. Ann. Sec. 354-A:2(VII).
\20\ Md. Ann. Code art. 49B, Sec. 15(b); Nev. Rev. Stat. Ann.
Sec. 613.310(2)(c).
---------------------------------------------------------------------------
Generally, the administrative complaint data reported by States
show relatively few employment discrimination complaints based on
sexual orientation and gender identity. In some States, the laws
proscribing sexual orientation and gender identity employment
discrimination were enacted relatively recently; therefore, these
States could not provide complete complaint data for the requested 3-
year period.
Enclosed with this correspondence are tables for each of the 22
States for which we compiled information. For each State we listed
specific information about the State statute, including relevant
definitions and coverage (e.g., minimum number of employees and
applicability of exemptions), and listed the complaint data provided by
the States.\21\ Some of the information in the tables came from our
reading of the State statute, as verified by the States, and other
information came from the States' responses to our questionnaire. It is
important to note that case law, regulation, or other guidance may also
address the specific elements listed in the tables. Our focus in this
report was only on the language of the State statutes.
---------------------------------------------------------------------------
\21\ All complaint data in the State tables are reported by State
fiscal year (generally, July 1 through June 30), except where noted.
---------------------------------------------------------------------------
James M. Rebbe, Senior Attorney, and Doreen S. Feldman, Assistant
General Counsel, prepared this report.
If you have any questions about this letter, please contact me at
202-512-8208.
Dayna K. Shah,
Managing Associate General Counsel.
State Tables
------------------------------------------------------------------------
State Information
------------------------------------------------------------------------
California:
Statutory provision(s) providing Cal. Gov. Code Sec. 12940
protection from employment (sexual orientation and
discrimination on the basis of sexual gender identity), Cal. Gov.
orientation and/or gender identity. Code Sec. 12926(p) (gender
identity).
Definition of ``sexual orientation''.... ``Heterosexuality,
homosexuality, and
bisexuality,'' including
``a perception that the
person has any of those
characteristics or that the
person is associated with a
person who has, or is
perceived to have, any of
those characteristics.''
Cal. Gov. Code Sec. Sec.
12926(m) and (q).
Does statute prohibit discrimination on Yes.
the basis of gender identity?.
Definition of ``gender identify''....... The definition of ``sex''
for purposes of the
California fair employment
statute ``includes, but is
not limited to, a person's
gender.'' This section then
refers to the definition of
``gender'' in the
California Penal Code,
which is defined as ``sex,
and includes a person's
gender identity and gender-
related appearance and
behavior whether or not
stereotypically associated
with the person's assigned
sex at birth.'' Cal. Gov.
Code Sec. 12926(p); Cal.
Pen. Code Sec. 422.56(c).
Minimum number of employees for coverage 5\22\.
Does statute address workplace access to No.
shared facilities?.
Religious organizations exempt?......... Yes.
Non-profit organizations exempt?........ No.
Does statute apply to government Yes.
employers?.
Total number of employment 2008\23\: 18,786; 2007:
discrimination administrative 16,396; 2006: 15,312.
complaints filed for the 3 most recent
years for which data is available.
Total number of employment 2008: 821; 2007: 815; 2006:
discrimination administrative 722.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is sexual orientation.
Total number of employment California does not have
discrimination administrative separate statistics on
complaints filed for the 3 most recent gender identity complaint
years for which data is available where data because gender
at least one of the claimed bases for identity discrimination is
discrimination is gender identity.. characterized as sex
discrimination.
Colorado:
Statutory provision(s) providing Colo. Rev. Stat. 24-34-402
protection from employment (sexual orientation and
discrimination on the basis of sexual gender identity), Colo.
orientation and/or gender identity. Rev. Stat. 24-34-401(7.5)
(gender identity).
Definition of ``sexual orientation''.... ``A person's orientation
toward heterosexuality,
homosexuality, bisexuality,
or transgender status or an
employer's perception
thereof.'' Colo. Rev. Stat.
24-34-401(7.5).
Does statute prohibit discrimination on Yes\24\.
the basis of gender identity?.
Definition of ``gender identity''....... The Colorado statute
includes ``transgender
status'' in the definition
of ``sexual orientation''
as a protected class but
does not define that term
in the statute.
Minimum number of employees for coverage 1.
Does statute address workplace access to No.
shared facilities?.
Religious organizations exempt?......... Yes.
Non-profit organizations exempt?........ No.
Does statute apply to government Yes.
employers?.
Total number of employment FY 2008-2009: 712; FY 2007-
discrimination administrative 2008: 635; FY 2006-2007:
complaints filed for the 3 most recent 593.
years for which data is available.
Total number of employment FY 2008-2009: 36; FY 2007-
discrimination administrative 2008: 23.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is sexual
orientation\25\.
Total number of employment FY 2008-2009: 2; FY 2007-
discrimination administrative 2008: 1.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is gender identity\26\.
Connecticut:
Statutory provision(s) providing Conn. Gen. Stat. Sec. 46a-
protection from employment 81c (sexual orientation).
discrimination on the basis of sexual
orientation and/or gender identity.
Definition of ``sexual orientation''.... ``Having a preference for
heterosexuality,
homosexuality or
bisexuality, having a
history of such preference
or being identified with
such preference, but
excludes any behavior which
constitutes a violation of
part VI of chapter 952
[relating to sex
offenses].'' Conn. Gen.
Stat. Sec. 46a-81a.
Does statute prohibit discrimination on No\27\.
the basis of gender identity?.
Definition of ``gender identity''....... N/A.
Minimum number of employees for coverage 3.
Does statute address workplace access to No.
shared facilities?.
Religious organizations exempt?......... Yes.
Non-profit organizations exempt?........ No.
Does statute apply to government Yes.
employers?.
Total number of employment FY 2008-09: 1,716; FY 2007-
discrimination administrative 08: 1,814; FY 2006-07:
complaints filed for the 3 most recent 1,783.
years for which data is available.
Total number of employment FY 2008-09: 44; FY 2007-08:
discrimination administrative 61; FY 2006-07: 72.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is sexual orientation.
Total number of employment Connecticut does not track
discrimination administrative gender identity complaints
complaints filed for the 3 most recent separately. They may appear
years for which data is available where as complaints based on
at least one of the claimed bases for sexual orientation,
discrimination is gender identity. complaints based on sex, or
both.
Delaware:
Statutory provision(s) providing 19 Del. C. Sec. 711 (sexual
protection from employment orientation).
discrimination on the basis of sexual
orientation and/or gender identity.
Definition of ``sexual orientation''.... ``Exclusively means
heterosexuality,
homosexuality, or
bisexuality.'' 19 Del. C.
Sec. 710(18).
Does statute prohibit discrimination on No.
the basis of gender identity?.
Definition of ``gender identity''....... N/A.
Minimum number of employees for coverage 4.
Does statute address workplace access to No.
shared facilities?.
Religious organizations exempt?......... Yes.
Non-profit organizations exempt?........ No.
Does statute apply to government Yes.
employers?.
Total number of employment FY 2008-2009: 728; FY 2007-
discrimination administrative 2008: 619; FY 2006-2007:
complaints filed for the 3 most recent 648.
years for which data is available.
Total number of employment Coverage based upon sexual
discrimination administrative orientation status went
complaints filed for the 3 most recent into effect July 1, 2009,
years for which data is available where so Delaware has not yet
at least one of the claimed bases for collected any data.
discrimination is sexual orientation.
Total number of employment N/A.
discrimination administrative
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is gender identity.
District of Columbia:
Statutory provision(s) providing D.C. Code Sec. 2-1402.11
protection from employment (sexual orientation and
discrimination on the basis of sexual gender identity).
orientation and/or gender identity.
Definition of ``sexual orientation''.... ``Male or female
homosexuality,
heterosexuality and
bisexuality, by preference
or practice.'' DC. Code
Sec. 2-1401.02(28).
Does statute prohibit discrimination on Yes.
the basis of gender identity?.
Definition of ``gender identity''....... `` `Gender identity or
expression' means a gender-
related identity,
appearance, expression, or
behavior of an individual,
regardless of the
individual's assigned sex
at birth.'' D.C. Code Sec.
2-1401.02(12A).
Minimum number of employees for coverage 1.
Does statute address workplace access to No.
shared facilities?.
Religious organizations exempt?......... Yes.
Non-profit organizations exempt?........ No.
Does statute apply to government Yes.
employers?.
Total number of employment FY 2008: 357; FY 2007: 282;
discrimination administrative FY 2006: 350.
complaints filed for the 3 most recent
years for which data is available\28\.
Total number of employment FY 2008: 28; FY 2007: 17; FY
discrimination administrative 2006: 29.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is sexual orientation.
Total number of employment FY 2008: 2; FY 2007: 0; FY
discrimination administrative 2006: 0.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is gender identity.
Hawaii:
Statutory provision(s) providing H.R.S. Sec. 378-2 (sexual
protection from employment orientation).
discrimination on the basis of sexual
orientation and/or gender identity.
Definition of ``sexual orientation''.... ``Having a preference for
heterosexuality,
homosexuality, or
bisexuality, having a
history of any one or more
of these preferences, or
being identified with any
one or more of these
preferences'' but ``shall
not be construed to protect
conduct otherwise
proscribed by law.'' H.R.S.
Sec. 378-1.
Does statute prohibit discrimination on No\29\.
the basis of gender identity?.
Definition of ``gender identity''....... N/A.
Minimum number of employees for coverage 1.
Does statute address workplace access to No.
shared facilities?.
Religious organizations exempt?......... Yes.
Non-profit organizations exempt?........ No.
Does statute apply to government Yes.
employers?.
Total number of employment FY 2007-2008: 617; FY 2006-
discrimination administrative 2007: 461; FY 2005-2006:
complaints filed for the 3 most recent 515.
years for which data is available.
Total number of employment FY 2007-2008: 8; FY 2006-
discrimination administrative 2007: 3; FY 2005-2006: 7.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is sexual orientation.
Total number of employment Hawaii does not track gender
discrimination administrative identity complaints
complaints filed for the 3 most recent separately, but considers
years for which data is available where gender identity
at least one of the claimed bases for discrimination a form of
discrimination is gender identity. sex discrimination.
Illinois:
Statutory provision(s) providing Sec. 775 ILCS 5/1-102(A),
protection from employment Sec. 775 ILCS 5/2-102(A),
discrimination on the basis of sexual Sec. 775 ILCS 5/1-103(O-1)
orientation and/or gender identity. (sexual orientation and
gender identity).
Definition of ``sexual orientation''.... ``Actual or perceived
heterosexuality,
homosexuality, bisexuality,
or gender-related identity,
whether or not
traditionally associated
with the person's
designated sex at birth.
`Sexual orientation' does
not include a physical or
sexual attraction to a
minor by an adult.' '' Sec.
775 ILCS 5/1-103(O-1).
Does statute prohibit discrimination on Yes.
the basis of gender identity?.
Definition of ``gender identity''....... There is not a separate
definition of ``gender
identity'' in Illinois
statute. See definition of
``sexual orientation.''
Minimum number of employees for coverage 15\30\.
Does statute address workplace access to No.
shared facilities?.
Religious organizations exempt?......... Yes.
Non-profit organizations exempt?........ No.
Does statute apply to government Yes.
employers?.
Total number of employment FY 2008-2009: 3,855; FY 2007-
discrimination administrative 2008: 3,522; FY 2006-2007:
complaints filed for the 3 most recent 3,287.
years for which data is available.
Total number of employment FY 2008-2009: 145; FY 2007-
discrimination administrative 2008: 81; FY 2006-2007:
complaints filed for the 3 most recent 103.
years for which data is available where
at least one of the claimed bases for
discrimination is sexual orientation.
Total number of employment FY 2008-2009: 5; FY 2007-
discrimination administrative 2008: 1; FY 2006-2007: 3.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is gender identity.
Iowa:
Statutory provision(s) providing Iowa Code Sec. 216.6
protection from employment (sexual orientation and
discrimination on the basis of sexual gender identity).
orientation and/or gender identity.
Definition of ``sexual orientation''.... ``Actual or perceived
heterosexuality,
homosexuality, or
bisexuality.'' Iowa Code
Sec. 216.2(14).
Does statute prohibit discrimination on Yes.
the basis of gender identity?.
Definition of ``gender identity''....... ``A gender-related identity
of a person, regardless of
the person's assigned sex
at birth.'' Iowa Code Sec.
216.2(10).
Minimum number of employees for coverage 4.
Does statute address workplace access to No.
shared facilities?.
Religious organizations exempt?......... Yes.
Non-profit organizations exempt?........ No.
Does statute apply to government Yes.
employers?.
Total number of employment FY 2007-2008: 1,453; FY 2006-
discrimination administrative 2007: 1,413; FY 2005-2006:
complaints filed for the 3 most recent 1,526.
years for which data is available.
Total number of employment FY 2008-2009: 29; FY 2007-
discrimination administrative 2008\31\: 17.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is sexual orientation.
Total number of employment FY 2008-2009: 3; FY 2007-
discrimination administrative 2008: 4.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is gender identity.
Maine:
Statutory provision(s) providing 5 M.R.S.A. Sec. 4552, 5
protection from employment M.R.S.A. Sec. 4553(9-C)
discrimination on the basis of sexual and (10), 5 M.R.S.A. Sec.
orientation and/or gender identity. 4571, 5 M.R.S.A. Sec. 4572
(sexual orientation and
gender identity).
Definition of ``sexual orientation''.... ``A person's actual or
perceived heterosexuality,
bisexuality, homosexuality
or gender identity or
expression.'' 5 M.R.S.A.
Sec. 4553(9-C).
Does statute prohibit discrimination on Yes.
the basis of gender identity?.
Definition of ``gender identity''....... Maine does not have a
separate statutory
definition for this term.
Minimum number of employees for coverage 1.
Does statute address workplace access to No.
shared facilities?.
Religious organizations exempt?......... Yes.
Non-profit organizations exempt?........ No.
Does statute apply to government Yes.
employers?.
Total number of employment FY 2008-2009: 494; FY 2007-
discrimination administrative 2008: 604; FY 2006-2007:
complaints filed for the 3 most recent 544.
years for which data is available.
Total number of employment FY 2008-2009: 6; FY 2007-
discrimination administrative 2008: 17; FY 2006-2007: 19.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is sexual orientation.
Total number of employment FY 2008-2009: 0; FY 2007-
discrimination administrative 2008: 1; FY 2006-2007: 0.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is gender identity.
Maryland:
Statutory provision(s) providing Md. Ann. Code art. 49B, Sec.
protection from employment Sec. 14, 16\32\ (sexual
discrimination on the basis of sexual orientation).
orientation and/or gender identity.
Definition of ``sexual orientation''.... ``The identification of an
individual as to male or
female homosexuality,
heterosexuality, or
bisexuality.'' Md. Ann.
Code art. 49B, Sec. 15(j).
Does statute prohibit discrimination on No.
the basis of gender identity?.
Definition of ``gender identity''....... N/A.
Minimum number of employees for coverage 15.
Does statute address workplace access to No.
shared facilities?.
Religious organizations exempt?......... Yes.
Non-profit organizations exempt?........ No\33\.
Does statute apply to government Yes.
employers?.
Total number of employment FY 2008-2009: 741; FY 2007-
discrimination administrative 2008: 663; FY 2006-2007:
complaints filed for the 3 most recent 645.
years for which data is available.
Total number of employment FY 2008-2009: 23; FY 2007-
discrimination administrative 2008: 24; FY 2006-2007: 28.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is sexual orientation.
Total number of employment Maryland does not track
discrimination administrative gender identity complaints
complaints filed for the 3 most recent separately. It does accept
years for which data is available where gender identity complaints
at least one of the claimed bases for under ``sex'' but not
discrimination is gender identity. ``sexual orientation.''
Massachusetts:
Statutory provision(s) providing M.G.L. c. 151B, Sec. 4(1),
protection from employment (3) (sexual orientation).
discrimination on the basis of sexual
orientation and/or gender identity.
Definition of ``sexual orientation''.... ``Having an orientation for
or being identified as
having an orientation for
heterosexuality,
bisexuality, or
homosexuality.'' M.G.L. c.
151B, Sec. 3(6).
Does statute prohibit discrimination on No\34\.
the basis of gender identity?.
Definition of ``gender identity''....... N/A.
Minimum number of employees for coverage 6.
Does statute address workplace access to No.
shared facilities?.
Religious organizations exempt?......... Yes.
Non-profit organizations exempt?........ Yes\35\.
Does statute apply to government Yes.
employers?.
Total number of employment 2008: 2,951; 2007: 2,862;
discrimination administrative 2006: 2,641.
complaints filed for the 3 most recent
years for which data is available\36\.
Total number of employment 2008: 100; 2007: 96; 2006:
discrimination administrative 85.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is sexual orientation.
Total number of employment N/A.
discrimination administrative
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is gender identity.
Minnesota:
Statutory provision(s) providing Minn. Stat. Sec. 363A.02,
protection from employment Minn. Stat. Sec. 363A.08,
discrimination on the basis of sexual Minn. Stat. Sec. 363A.03,
orientation and/or gender identity. Subd. 44 (sexual
orientation and gender
identity).
Definition of ``sexual orientation''.... ``Having or being perceived
as having an emotional,
physical, or sexual
attachment to another
person without regard to
the sex of that person or
having or being perceived
as having an orientation
for such attachment, or
having or being perceived
as having a self-image or
identity not traditionally
associated with one's
biological maleness or
femaleness,'' but ``does
not include a physical or
sexual attachment to
children by an adult.''
Minn. Stat. Sec. 363A.03,
Subd. 44.
Does statute prohibit discrimination on Yes.
the basis of gender identity?.
Definition of ``gender identity''....... Minnesota does not have a
separate statutory
definition of ``gender
identity,'' but includes
this category in its
definition of ``sexual
orientation.''
Minimum number of employees for coverage 1.
Does statute address workplace access to No.
shared facilities?.
Religious organizations exempt?......... Yes\37\.
Non-profit organizations exempt?........ No\38\.
Does statute apply to government Yes.
employers?.
Total number of employment 2008: 880; 2007: 821; 2006:
discrimination administrative 926.
complaints filed for the 3 most recent
years for which data is available\39\.
Total number of employment 2008: 24; 2007: 21; 2006:
discrimination administrative 28.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is sexual orientation.
Total number of employment The definition of sexual
discrimination administrative orientation under Minnesota
complaints filed for the 3 most recent statue includes gender
years for which data is available where identity and therefore the
at least one of the claimed bases for numbers listed above for
discrimination is gender identity. sexual orientation
complaints encompass all
gender identity complaints.
Nevada:
Statutory provision(s) providing Nev. Rev. Stat. Ann. Sec.
protection from employment 233.010, Nev. Rev. Stat.
discrimination on the basis of sexual Ann. Sec. 613.330 (sexual
orientation and/or gender identity. orientation).
Definition of ``sexual orientation''.... ``Having or being perceived
as having an orientation
for heterosexuality,
homosexuality or
bisexuality.'' Nev. Rev.
Stat. Ann. Sec.
613.310(6).
Does statute prohibit discrimination on No.
the basis of gender identity?.
Definition of ``gender identity''....... N/A.
Minimum number of employees for coverage 15.
Does statute address workplace access to No.
shared facilities?.
Religious organizations exempt?......... Yes.
Non-profit organizations exempt?........ No\40\.
Does statute apply to government Yes.
employers?.
Total number of employment FY 2007-2008: 1,401; FY 2006-
discrimination administrative 2007: 1,218; FY 2005-2006:
complaints filed for the 3 most recent 972.
years for which data is available.
Total number of employment FY 2007-2008: 55; FY 2006-
discrimination administrative 2007: 30; FY 2005-2006: 25.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is sexual orientation.
Total number of employment N/A.
discrimination administrative
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is gender identity.
New Hampshire:
Statutory provision(s) providing N.H. Rev. Stat. Ann. Sec.
protection from employment 354-A:6 (sexual
discrimination on the basis of sexual orientation).
orientation and/or gender identity.
Definition of ``sexual orientation''.... ``Having or being perceived
as having an orientation
for heterosexuality,
bisexuality, or
homosexuality. This
definition is intended to
describe the status of
persons and does not render
lawful any conduct
prohibited by the criminal
laws of this State or
impose any duty on a
religious organization.
This definition does not
confer legislative approval
of such status, but is
intended to assure the
basic rights afforded under
New Hampshire law.'' N.H.
Rev. Stat. Ann. Sec.
21:49.
Does statute prohibit discrimination on No.
the basis of gender identity?.
Definition of gender identity........... N/A.
Minimum number of employees for coverage 6.
Does statute address workplace access to No.
shared facilities?.
Religious organizations exempt?......... Yes.
Non-profit organizations exempt?........ No\41\.
Does statute apply to government Yes.
employers?.
Total number of employment FY 2007-2008: 251; FY 2006-
discrimination administrative 2007: 318; FY 2005-2006:
complaints filed for the 3 most recent 274.
years for which data is available.
Total number of employment FY 2007-2008: 7; FY 2006-
discrimination administrative 2007: 14; FY 2005-2006: 5.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is sexual orientation.
Total number of employment New Hampshire does not allow
discrimination administrative a claim based on gender
complaints filed for the 3 most recent identity, but claims from
years for which data is available where transsexuals can be filed
at least one of the claimed bases for under the ``sex'' and
discrimination is gender identity. ``disability'' categories.
New Jersey:
Statutory provision(s) providing N.J. Stat. Sec. 10:2-1,
protection from employment N.J. Stat. Sec. 10:5-3,
discrimination on the basis of sexual N.J. Stat. Sec. 10:5-4,
orientation and/or gender identity. N.J. Stat. Sec. 10:5-12
(sexual orientation and
gender identity).
Definition of ``sexual orientation''.... `` `Affectional or sexual
orientation' means male or
female heterosexuality,
homosexuality or
bisexuality by inclination,
practice, identity or
expression, having a
history thereof or being
perceived, presumed or
identified by others as
having such an
orientation.'' N.J. Stat.
Sec. 10:5-5(hh).
Does statute prohibit discrimination on Yes.
the basis of gender identity?.
Definition of ``gender identity''....... `` `Gender identity or
expression' means having or
being perceived as having a
gender related identity or
expression whether or not
stereotypically associated
with a person's assigned
sex at birth.'' N.J. Stat.
Sec. 10:5-5(rr).
Minimum number of employees for coverage 1.
Does statute address workplace access to No.
shared facilities?.
Religious organizations exempt?......... Yes.
Non-profit organizations exempt?........ No.
Does statute apply to government Yes\42\.
employers?.
Total number of employment 2008: 692; 2007: 717; 2006:
discrimination administrative 885.
complaints filed for the 3 most recent
years for which data is available\43\.
Total number of employment 2008: 34; 2007: 39; 2006:
discrimination administrative 47.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is sexual orientation.
Total number of employment New Jersey has not received
discrimination administrative any complaints alleging
complaints filed for the 3 most recent employment discrimination
years for which data is available where based on gender identity or
at least one of the claimed bases for expression since the law
discrimination is gender identity. went into effect in
February 2007 banning such
discrimination.
New Mexico:
Statutory provision(s) providing N.M. Stat. Ann. Sec. 28-1-7
protection from employment (sexual orientation and
discrimination on the basis of sexual gender identity).
orientation and gender identity.
Definition of ``sexual orientation''.... ``Heterosexuality,
homosexuality or
bisexuality, whether actual
or perceived.'' N.M. Stat.
Ann. Sec. 28-1-2(P).
Does statute prohibit discrimination on Yes.
the basis of gender identity?.
Definition of ``gender identity''....... ``A person's self-
perception, or perception
of that person by another,
of the person's identity as
a male or female based upon
the person's appearance,
behavior or physical
characteristics that are in
accord with or opposed to
the person's physical
anatomy, chromosomal sex or
sex at birth.'' N.M. Stat.
Ann. Sec. 28-1-2(Q).
Minimum number of employees for coverage 15\44\.
Does statute address workplace access to No.
shared facilities?.
Religious organizations exempt?......... Yes.
Non-profit organizations exempt?........ No.
Does statute apply to government Yes.
employers?.
Total number of employment FY 2008-2009: 674; FY 2007-
discrimination administrative 2008: 747; FY 2006-2007:
complaints filed for the 3 most recent 705.
years for which data is available.
Total number of employment FY 2008-2009: 30; FY 2007-
discrimination administrative 2008: 46; FY 2006-2007: 45.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is sexual orientation.
Total number of employment FY 2008-2009: 1; FY 2007-
discrimination administrative 2008: 1; FY 2006-2007: 0.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is gender identity.
New York:
Statutory provision(s) providing NY CLS Exec. Sec. 296
protection from employment (sexual orientation).
discrimination on the basis of sexual
orientation and/or gender identity.
Definition of ``sexual orientation''.... ``Heterosexuality,
homosexuality, bisexuality
or asexuality, whether
actual or perceived.
However, nothing contained
herein shall be construed
to protect conduct
otherwise proscribed by
law.'' NY CLS Exec. Sec.
292(27).
Does statute prohibit discrimination on No\45\.
the basis of gender identity?.
Definition of ``gender identity''....... N/A.
Minimum number of employees for coverage 4.
Does statute address workplace access to No.
shared facilities?.
Religious organizations exempt?......... Yes.
Non-profit organizations exempt?........ No.
Does statute apply to government Yes.
employers?.
Total number of employment FY 2008-2009\46\: 6,434; FY
discrimination administrative 2007-2008: 6,088; FY 2006-
complaints filed for the 3 most recent 2007: 4,623.
years for which data is available.
Total number of employment FY 2008-2009: 312; FY 2007-
discrimination administrative 2008: 216; FY 2006-2007:
complaints filed for the 3 most recent 141.
years for which data is available where
at least one of the claimed bases for
discrimination is sexual orientation.
Total number of employment New York does not track this
discrimination administrative subset of sex and/or
complaints filed for the 3 most recent disability complaints in
years for which data is available where its system.
at least one of the claimed bases for
discrimination is gender identity.
Oregon:
Statutory provision(s) providing ORS Sec. 659A.006, ORS Sec.
protection from employment 659A.030 (sexual
discrimination on the basis of sexual orientation and gender
orientation and gender identity. identity), ORS Sec.
174.100 (gender identity)
(as amended by 2007 Oregon
Laws Ch. 100 (S.B. 2)).
Definition of ``sexual orientation''.... ``An individual's actual or
perceived heterosexuality,
homosexuality, bisexuality
or gender identity,
regardless of whether the
individual's gender
identity, appearance,
expression or behavior
differs from that
traditionally associated
with the individual's
assigned sex at birth.''
ORS Sec. 174.100(6).
Does statute prohibit discrimination on Yes.
the basis of gender identity?.
Definition of ``gender identity''....... Oregon does not have a
separate statutory
definition of ``gender
identity.''
Minimum number of employees for coverage 1.
Does statute address workplace access to No.
shared facilities?.
Religious organizations exempt?......... Yes.
Non-profit organizations exempt?........ No.
Does statute apply to government Yes.
employers?.
Total number of employment 2008: 1957; 2007: 1916;
discrimination administrative 2006: 1857.
complaints filed for the 3 most recent
years for which data is available\47\.
Total number of employment 2009 (year to date): 34;
discrimination administrative 2008: 28; 2007 and 2006:
complaints filed for the 3 most recent There are no data for these
years for which data is available where years because Oregon's
at least one of the claimed bases for statute prohibiting
discrimination is sexual orientation. employment discrimination
on the basis of sexual
orientation and gender
identity went into effect
in January 2008.
Total number of employment These data are included in
discrimination administrative the sexual orientation data
complaints filed for the 3 most recent listed above.
years for which data is available where
at least one of the claimed bases for
discrimination is gender identity.
Rhode Island:
Statutory provision(s) providing R.I. Gen. Laws Sec. 28-5-3,
protection from employment R.I. Gen. Laws Sec. 28-5-7
discrimination on the basis of sexual (sexual orientation and
orientation and/or gender identity. gender identity), R.I. Gen.
Laws Sec. 28-5-6(15)
(sexual orientation), R.I.
Gen. Laws Sec. 28-5-6(10)
(gender identity).
Definition of ``sexual orientation''.... ``Having or being perceived
as having an orientation
for heterosexuality,
bisexuality, or
homosexuality. This
definition is intended to
describe the status of
persons and does not render
lawful any conduct
prohibited by the criminal
laws of this State nor
impose any duty on a
religious organization.
This definition does not
confer legislative approval
of that status, but is
intended to assure the
basic human rights of
persons to obtain and hold
employment, regardless of
that status.'' R.I. Gen.
Laws Sec. 28-5-6(15).
Does statute prohibit discrimination on Yes.
the basis of gender identity?.
Definition of ``gender identity''....... `` `Gender identity or
expression' includes a
person's actual or
perceived gender, as well
as a person's gender
identity, gender-related
self image, gender-related
appearance, or gender-
related expression; whether
or not that gender
identity, gender-related
self image, gender-related
appearance, or gender-
related expression is
different from that
traditionally associated
with the person's sex at
birth.'' R.I. Gen. Laws
Sec. 28-5-6(10).
Minimum number of employees for coverage 4.
Does statute address workplace access to No.
shared facilities?.
Religious organizations exempt?......... Yes.
Non-profit organizations exempt?........ No.
Does statute apply to government Yes.
employers?.
Total number of employment FY 2008-2009: 277; FY 2007-
discrimination administrative 2008: 336; FY 2006-2007:
complaints filed for the 3 most recent 301.
years for which data is available.
Total number of employment FY 2008-2009: 3; FY 2007-
discrimination administrative 2008: 11; FY 2006-2007: 5.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is sexual orientation.
Total number of employment FY 2008-2009: 0; FY 2007-
discrimination administrative 2008: 0; FY 2006-2007: 1.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is gender identity.
Vermont:
Statutory provision(s) providing 21 V.S.A. Sec. 495 (sexual
protection from employment orientation and gender
discrimination on the basis of sexual identity)\48\.
orientation and/or gender identity.
Definition of ``sexual orientation''.... ``Female or male
homosexuality,
heterosexuality, or
bisexuality'' but ``shall
not be construed to protect
conduct otherwise
proscribed by law.'' 1
V.S.A. Sec. 143.
Does statute prohibit discrimination on Yes.
the basis of gender identity?.
Definition of ``gender identity''....... ``An individual's actual or
perceived gender identity
or gender-related
characteristics
intrinsically related to an
individual's gender or
gender identity, regardless
of the individual's
assigned sex at birth.'' 1
V.S.A. Sec. 144.
Minimum number of employees for coverage 1.
Does statute address workplace access to No.
shared facilities?.
Religious organizations exempt?......... Yes.
Non-profit organizations exempt?........ No.
Does statute apply to government Yes (see also footnote 48).
employers?.
Total number of employment 2008: 45; 2007: 41; 2006:
discrimination administrative 38.
complaints filed for the 3 most recent
years for which data is available\49\.
Total number of employment 2008: 4; 2007: 4; 2006: 2.
discrimination administrative
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is sexual orientation.
Total number of employment 2008: 1; 2007: 0; 2006: N/A
discrimination administrative because gender identity
complaints filed for the 3 most recent discrimination was not
years for which data is available where proscribed at the time.
at least one of the claimed bases for
discrimination is gender identity.
Washington:
Statutory provision(s) providing Rev. Code Wash. Ann. Sec.
protection from employment 49.60.030 and Sec.
discrimination on the basis of sexual 49.60.180 (sexual
orientation and gender identity. orientation and gender
identity).
Definition of ``sexual orientation''.... ``Heterosexuality,
homosexuality, bisexuality,
and gender expression or
identity.'' Rev. Code Wash.
Ann. Sec. 49.60.040(15).
Does statute prohibit discrimination on Yes.
the basis of gender identity?.
Definition of ``gender identity''....... ``Gender expression or
identity means having or
being perceived as having a
gender identity, self-
image, appearance,
behavior, or expression,
whether or not that gender
identity, self-image,
appearance, behavior, or
expression is different
from that traditionally
associated with the sex
assigned to that person at
birth.'' Rev. Code Wash.
Ann. Sec. 49.60.040(15).
Minimum number of employees for coverage 8.
Does statute address workplace access to No.
shared facilities?.
Religious organizations exempt?......... Yes.
Non-profit organizations exempt?........ No.
Does statute apply to government Yes.
employers?.
Total number of employment FY 2008-2009: 692; FY 2007-
discrimination administrative 2008: 791; FY 2006-2007:
complaints filed for the 3 most recent 607.
years for which data is available.
Total number of employment FY 2008-2009: 23; FY 2007-
discrimination administrative 2008: 25; FY 2006-2007: 34.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is sexual orientation.
Total number of employment The statistics for ``sexual
discrimination administrative orientation'' employment
complaints filed for the 3 most recent discrimination complaints
years for which data is available where also encompass ``gender
at least one of the claimed bases for identity'' employment
discrimination is gender identity. discrimination complaints.
Washington does not track
this category separately.
Wisconsin:
Statutory provision(s) providing Wis. Stat. Sec. 111.31
protection from employment (sexual orientation).
discrimination on the basis of sexual
orientation and/or gender identity.
Definition of ``sexual orientation''.... ``Having a preference for
heterosexuality,
homosexuality or
bisexuality, having a
history of such a
preference or being
identified with such
preference.'' Wis. Stat.
Sec. 111.32(13m).
Does statute prohibit discrimination on No.
the basis of gender identity?\50\.
Definition of ``gender identity''....... N/A.
Minimum number of employees for coverage 1.
Does statute address workplace access to No.
shared facilities?.
Religious organizations exempt?......... Yes.
Non-profit organizations exempt?........ No.
Does statute apply to government Yes.
employers?.
Total number of employment FY 2008-2009: 3,430; FY 2007-
discrimination administrative 2008: 3,504; FY 2006-2007:
complaints filed for the 3 most recent 3,502.
years for which data is available.
Total number of employment FY 2008-2009: 62; FY 2007-
discrimination administrative 2008: 56; FY 2006-2007: 51.
complaints filed for the 3 most recent
years for which data is available where
at least one of the claimed bases for
discrimination is sexual orientation.
Total number of employment The Wisconsin Fair
discrimination administrative Employment Law does not
complaints filed for the 3 most recent provide for filing of a
years for which data is available where complaint based on gender
at least one of the claimed bases for identity.
discrimination is gender identity.
------------------------------------------------------------------------
\22\ California law also prohibits harassment on all the protected
bases, including sexual orientation or gender identity harassment; the
minimum number of employees for this protection is one.
\23\ All complaint data in this table are reported by calendar year.
\24\ Colorado's statute covers ``transgender status.''
\25\ Sexual orientation status was not covered before FY 2007-2008.
\26\ Transgender status was not covered before FY 2007-2008.
\27\ According to a Connecticut official, discrimination based on gender
identity or expression is treated as a form of discrimination because
of sex, which is prohibited under Conn. Gen. Stat. Sec. 46a-60. The
Connecticut Commission on Human Rights and Opportunities treats gender
identity discrimination in this manner based on a declaratory ruling
involving a transsexual. See Declaratory Ruling on Behalf of John/Jane
Doe (November 9, 2000). http://www.ct.gov/chro/cwp/
view.asp?a=2526&Q=315942.
\28\ The District of Columbia uses the Federal fiscal year, which runs
from October 1 through September 30.
\29\ According to a Hawaii official, the Hawaii Civil Rights Commission
has interpreted the ``because of sex'' provision of Haw. Rev. Stat.
Sec. 378-2 to include discrimination on the basis of gender identity.
(H.R.S. Sec. 378-2(1)(A) provides, in part: ``It shall be an unlawful
discriminatory practice [b]ecause of . . . sex . . . [f]or any
employer to refuse to hire . . . '') See D.R. No. 02-0015, June 29,
2002 (found at http://hawaii.gov/labor/hcrc/decisions/decl_relief_pet/
DR15OR.pdf), reversed on other grounds, RGIS Inventory v. Hawaii Civil
Rights, 104 Hawaii 158 (2004).
\30\ The minimum number of employees required for application of the non-
discrimination provisions depends upon the type of employer and/or the
type of discrimination being alleged. For instance, State and other
governmental employers need only employ one person. Private employers
must employ 15 or more employees within Illinois during 20 or more
calendar weeks within the calendar year of or preceding the alleged
violation. In cases where the complainant alleges discrimination based
upon his or her physical or mental handicap unrelated to ability, or
sexual harassment, the non-discrimination provisions apply if the
employer employs a minimum of one person.
\31\ Iowa started accepting employment discrimination complaints on the
basis of sexual orientation and gender identity on July 1, 2007.
\32\ Effective Oct. 1, 2009, article 49B will be recodified as State
Government Article, Sec. 20-101, et seq., Md. Ann. Code.
\33\ The statute exempts a ``bona fide private membership club (other
than a labor organization) which is exempt from taxation under Sec.
501(c) of the Internal Revenue Code.'' Md. Ann. Code art. 49B, Sec.
15(b).
\34\ According to a Massachusetts official, the Massachusetts Commission
Against Discrimination will accept, investigate and adjudicate gender
identity cases under the section of Massachusetts statute prohibiting
discrimination on the basis of sex. In addition, the official stated
that there is State case law concluding that a transgender individual
could fall within the definition of handicapped.
\35\ Under M.G.L. c. 151B, Sec. 1(5), ``[t]he term `employer' does not
include a club exclusively social, or a fraternal association or
corporation, if such club, association or corporation is not organized
for private profit. . . .''
\36\ All complaint data in this table are reported by calendar year.
\37\ See discussion of Minnesota's religious exemption in the letter
preceding the State tables.
\38\ Nonpublic service organizations whose primary function is providing
occasional services to minors are exempt.
\39\ All complaint data in this table are reported by calendar year.
\40\ Tax-exempt private membership clubs are exempt.
\41\ Exclusively fraternal and social clubs are exempt.
\42\ The statute does not cover bi-state entities such as the Port
Authority of New York and New Jersey.
\43\ All complaint data in this table are reported by calendar year.
\44\ New Mexico's non-discrimination statute generally applies to
employers having at least four employees; however, an employer must
have at least 15 employees for the non-discrimination protections
based on sexual orientation and gender identity to apply.
\45\ A New York official provided a citation from the Resource Guide to
the New York State Human Rights Law, 2008 Edition, which states ``The
definition of `sexual orientation' set forth in the Human Rights Law
does not specifically include transsexuals. However, precedent exists
under other, pre-existing provisions of the Human Rights Law to the
effect that post-operative transsexuals are deemed to belong to the
gender to which they have been surgically reassigned, and that
discrimination against them is deemed to be sex discrimination.
Richards v. U.S. Tennis Association, 93 Misc.2d 713, 400 N.Y.S.2d 267
(Sup.Ct.N.Y.Co. 1977). Furthermore, transsexuals who state that they
have a disability are protected from discrimination under the
disability provisions of the Human Rights Law, inasmuch as gender
dysphoria is a recognized medical condition.''
\46\ New York's fiscal year runs from April 1 through March 31.
\47\ All complaint data in this table are reported by calendar year.
\48\ This statute is part of the Vermont Fair Employment Practices Act
(VFEPA) and is the principal statute proscribing sexual orientation
and gender identity discrimination in employment. Claims alleging
employment discrimination by private sector or municipal employers are
enforced by the Civil Rights Unit of the State Attorney General's
Office (CRU) and claims against Vermont State employers are enforced
by the Vermont Human Rights Commission (HRC). VFEPA applies to all
private and public sector employers. In addition, other non-
discrimination statutes may also apply to State executive, judicial,
and municipal employers and are enforced by the Vermont Labor
Relations Board and/or State courts.
\49\ Pursuant to Vermont's work-sharing agreement with the Equal
Employment Opportunity Commission, the CRU and HRC also receive
complaints alleging employment discrimination in violation of Federal
law. The statistics shown only include those that allege at least one
violation of the VFEPA. In addition, number of complaints is listed by
calendar year.
\50\ According to a Wisconsin official, Wisconsin does not specifically
provide for filing of a discrimination complaint based on gender
identity. However, depending on the facts of the particular situation,
an individual with a gender identity issue may be able to bring a
claim of discrimination based on disability or sex.
Letters of Support
African-American Ministers In Action (AAMIA),
Washington, DC 20036,
November 5, 2009.
Hon. Tom Harkin, Chairman,
Senate Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC 20510.
Dear Chairman Harkin: On behalf of the African-American Ministers
in Action, a project of People For the American Way, we applaud the
Senate Committee on Health, Education, Labor, and Pensions for holding
this hearing on S. 1584, the bipartisan Employment Non-Discrimination
Act of 2009 (ENDA). We would also like to take this opportunity to once
again thank Senator Merkley and the late Edward Kennedy for their
relentless leadership in moving ENDA through Congress. It is time for
Congress to pass this important civil rights legislation.
Discrimination is wrong no matter how it manifests itself, however
it disguises itself. If we're going to build the beloved community that
Dr. King spoke of, we must be conscious of discrimination, no matter
where it rears its ugly head. As African-American ministers, we know
what it takes to stand up against systemic oppression. It is in
solidarity and love that we recognize the plight of others and support
this struggle for the same protections. Passage of ENDA would be a
major step in the right direction by ensuring that current protections
are extended to include sexual orientation and gender identity.
In most States, it is currently legal for employers to engage in
such discrimination despite the basic unfairness of such practices.
These road blocks stand in the way of those Americans not protected
under current law and who have found themselves unable to financially
support themselves and their families. It is time for the laws of the
country to reflect public support for the principle of employment
fairness.
It is still legal to fire or refuse to hire someone simply because
of his or her sexual orientation in 29 States, and in 38 States
employers can do so solely based on an individual's gender identity.
ENDA prohibits discrimination based on sexual orientation and gender
identity in most workplaces.
ENDA is commonsense legislation that addresses injustice with a
sensible solution. And, as we have noted, it would extend protections
that some States and many large corporations already provide--without
disruptive business consequences. We strongly urge the committee to
swiftly pass ENDA, and we urge Senate Leadership to bring the bill to
the floor as soon as possible.
Sincerely,
Rev. Timothy McDonald,
Chairman, African-American Ministers in Action.
Rev. Robert P. Shine,
Vice Chair, African-American Ministers In Action.
American Airlines,
October 30, 2009.
Hon. Tom Harkin, Chairman,
Committee on Health, Education, Labor, & Pensions,
U.S. Senate,
428 Dirksen Senate Office Building,
Washington, DC 20510.
Hon. Michael Enzi, Ranking Member,
Committee on Health, Education, Labor, & Pensions,
U.S. Senate,
428 Dirksen Senate Office Building,
Washington, DC 20510.
Hon. George Miller, Chairman,
Committee on Education and Labor,
U.S. House of Representatives,
2181 Rayburn House Office Building,
Washington, DC 20515.
Hon. John Kline, Ranking Member,
Committee on Education and Labor,
U.S. House of Representatives,
2101 Rayburn House Office Building,
Washington, DC 20515.
Dear Chairman Harkin, Chairman Miller, Ranking Member Enzi and
Ranking Member Kline: On behalf of our 80,000 employees, American
Airlines is proud to express our strong support for S. 1584 and H.R.
3017, the Employment Non-Discrimination Act (ENDA), which would extend
basic job protections to gay, lesbian, bisexual and transgender
Americans. We are proud to have been the first major airline to
implement same-sex domestic partner benefits, first to implement both
sexual orientation and gender identity in our workplace non-
discrimination policies, and first to have a recognized LGBT employee
resource group--GLEAM.
Our endorsement of ENDA is consistent with our longstanding
Statement of Equal Opportunity, which reads,
``It is the expressed policy of American Airlines to provide
equal employment opportunity to everyone without regard to age,
race, sex, gender, gender identity, color, religion, national
origin, sexual orientation, citizenship status, disability, or
veteran status.''
The principles fostered by ENDA are consistent with our corporate
principles in treating all employees with fairness and respect. We
appreciate your consideration and encourage Congress to enact this
important legislation.
Sincerely,
Denise Lynn,
Vice President, Diversity & Leadership Strategies.
Michael Wascom,
Managing Director, Int'l Government Affairs.
George Carraricho,
National Sales & Marketing Manager, LGBT Community.
______
American Bar Association (ABA),
Washington, DC 20005-1022,
November 4, 2009.
Dear Chairman Harkin and Senator Enzi: On behalf of the American
Bar Association (ABA), I write to emphasize the ABA's long tradition of
actively opposing discrimination. Whenever any of our basic civil
rights are diminished or marginal-
ized unjustifiably on the basis of personal characteristics, all of our
basic civil rights are diminished and jeopardized. Neither our
Constitution nor our Congress should tolerate such discrimination.
Specifically, in 1989, the ABA adopted a policy calling upon local,
State, and Federal lawmakers to prohibit discrimination on the basis of
sexual orientation.
Sincerely,
Carolyn B. Lamm.
American Psychological Association (APA)
October 1, 2009.
Hon. Jeff Merkley,
B40b Senate Dirksen Building,
Washington, DC 20510.
Dear Senator Merkley: On behalf of the 150,000 members of the
American Psychological Association (APA), I am writing to express our
strong support for the Employment Non-Discrimination Act (ENDA) of 2009
(S. 1584).
APA is the largest scientific and professional organization
representing psychology in the United States and is the world's largest
association of psychologists. Comprising researchers, educators,
clinicians, consultants, and students, APA works to advance psychology
as a science, a profession, and as a means of promoting health,
education and human welfare.
APA has a longstanding commitment to ending discriminatory
practices targeting lesbian, gay, bisexual and transgendered (LGBT)
persons. Specifically, APA adopted a resolution on ``Opposing
Discriminatory Legislation and Initiatives Aimed at Lesbian, Gay, and
Bisexual Persons'' in 2007, and another policy statement on
``Transgender, Gender Identity, and Gender Expression Non-
Discrimination'' in 2008 (both enclosed for your consideration). As
stated in these resolutions, not only is there no basis for
discrimination against LGBT individuals, but also such discrimination
is harmful to their mental health and the public good.
S. 1584, the Employment Non-Discrimination Act of 2009, lays a
strong foundation for instituting a policy of nondiscrimination based
on sexual orientation and gender identity in the U.S. workplace,
consistent with anti-discrimination policies concerning race, gender,
and disability status. In particular, this critical legislation would
prohibit employers from making decisions about hiring, firing,
promoting, or compensating an employee who belongs to a sexual or
gender minority. As you probably know, it is currently legal to
discriminate in the workplace based on sexual orientation in 29 States
and in 38 States based on gender identity.
Psychological research supports the conclusion that people who
accept and integrate their sexual orientation and gender identity are
psychologically better adjusted than those who do not. To promote
psychological well-being among workers, individuals should have the
opportunity to disclose personal information without the threat of
negative ramifications. Furthermore, research has consistently found
that heterosexuals who have contact with LGBT populations have more
positive attitudes towards LGBT people as a group. Taken together,
these findings suggest that the presence of LGBT coworkers does not
undermine employee morale or relationships, but rather may strengthen
worker rapport.
Allowing an atmosphere of intolerance based on sexual orientation
or gender identity in the workplace is detrimental for LGBT individuals
as well as for everyone in the workplace. In addition, employment
discrimination based on sexual orientation and gender identity
inadvertently legitimizes other forms of prejudice and discrimination,
including anti-gay violence.
In closing, we would like to thank you for your efforts in
developing the Employment Non-Discrimination Act of 2009, and offer our
association's assistance in furthering passage of this vital
legislation. If you have any questions or would like more information,
please contact Jutta Tobias, Ph.D., in our Government Relations Office,
at (202) 336-5668.
Sincerely,
Gwendolyn Puryear Keita, Ph.D.,
Executive Director, Public Interest Directorate.
______
American Civil Liberties Union (ACLU),
New York, NY 10004-2400,
November 4, 2009.
Hon. Tom Harkin, Chairman,
Hon. Michael Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
428 Dirksen Senate Office Building,
Washington, DC 20510.
Dear Chairman Harkin and Ranking Member Enzi: On behalf of the
American Civil Liberties Union (ACLU), I write to share our view that
the enactment of S. 1584, the Employment Non-Discrimination Act of 2009
(ENDA), which would prohibit employment discrimination on the basis of
sexual orientation or gender identity and, in doing so, abrogate the
sovereign immunity that States enjoy under the 11th Amendment, would
constitute a valid exercise of congressional power under Section 5 of
the 14th Amendment.
The ACLU is a non-partisan, non-profit, national legal
organization, the oldest and largest of its kind, with a presence in
every State. Its mission has long included the defense of the civil
liberties, and the fight for the civil rights, of lesbian, gay,
bisexual, and transgender (LGBT) individuals. Indeed, its advocacy on
behalf of this population dates back to the 1930s. For over 25 years,
the ACLU has housed a legal division that is specifically devoted to
the advancement of the full range of LGBT rights, including those
related to State employment. In light of its longstanding work with the
LGBT community, the ACLU is well-positioned to speak to both the
ongoing concerns that LGBT State employees face as well as the legal
considerations that they implicate.
Section 11(a) of ENDA would provide as follows: ``A State shall not
be immune under the 11th Amendment to the Constitution from a suit
brought in a Federal court of competent jurisdiction for a violation of
this Act.'' The 11th Amendment grants States immunity from suit by
individuals in Federal court:
The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.
U.S. Const. 11th Am. At the same time, the Fourteenth Amendment grants
Congress authority to enforce, among other things, its prohibition of
irrational discrimination by States against individuals:
Section 1 . . . No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the
laws.
* * * * * * *
Section 5. The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.
U.S. Const. 14th Am. The Supreme Court has articulated the proper
balancing of these constitutional considerations where Federal civil
rights legislation provides enforcement mechanisms by individuals
against States.
I. THE INTERPLAY BETWEEN THE 11TH AMENDMENT AND SECTION 5
OF THE FOURTEENTH AMENDMENT
In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the Court held that
States are not immune from suit under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. Sec. Sec. 2000e, et seq., which prohibits, among
other things, employment discrimination on the basis of sex. In doing
so, the Court emphasized that Congress expressly enacted title VII
pursuant to its authority under section 5 of the Fourteenth Amendment.
Fitzpatrick, 427 U.S. at 452-53 & n.9. The Court explained the
relationship between the 11th Amendment and the Fourteenth Amendment as
follows:
[W]e think that the 11th Amendment, and the principle of
State sovereignty which it embodies are necessarily limited by
the enforcement provisions of [Section] 5 of the Fourteenth
Amendment. In that section Congress is expressly granted
authority to enforce ``by appropriate legislation'' the
substantive provisions of the Fourteenth Amendment, which
themselves embody significant limitations on State authority.
When Congress acts pursuant to [Section] 5, not only is it
exercising legislative authority that is plenary within the
terms of the constitutional grant, it is exercising that
authority under one section of a constitutional Amendment whose
other sections by their own terms embody limitations on State
authority. We think that Congress may, in determining what is
``appropriate legislation'' for the purpose of enforcing the
provisions of the Fourteenth Amendment, provide for private
suits against States or State officials which are
constitutionally impermissible in other contexts.
Id. at 456 (citations, and footnote omitted). The Court thereby
confirmed that Congress may abrogate sovereign immunity under the 11th
Amendment where it acts pursuant to Section 5 of the 14th Amendment.
In City of Boerne v. Flores, 521 U.S. 507 (1997), in the course of
holding that States are immune from suit under the Religious Freedom
Restoration Act of 1993 (RFRA), 42 U.S.C. Sec. Sec. 2000bb, et seq.,
which expressly overrides Employment Div., Dep't of Human Res. v.
Smith, 494 U.S. 872 (1990), and requires that a neutral law of general
applicability that substantially burdens religious liberty be narrowly
tailored to further a compelling interest, the Court clarified the
circumstances under which Congress properly acts to abrogate sovereign
immunity. The Court began by confirming that, in enacting RFRA,
``Congress relied on its Fourteenth Amendment enforcement power.''
Boerne, 521 U.S. at 516 (citations omitted). The Court then turned to
whether RFRA was a proper exercise of congressional power under section
5 of the Fourteenth Amendment to enforce rights guaranteed by Due
Process Clause, which include those guaranteed by the Free Exercise
Clause.
The Court emphasized that Congress may enforce rights guaranteed by
the Fourteenth Amendment, as interpreted by the courts:
Congress' power under Sec. 5 . . . extends only to
``enforc[ing]'' the provisions of the Fourteenth Amendment. . .
. The design of the Amendment and the text of Sec. 5 are
inconsistent with the suggestion that Congress has the power to
decree the substance of the Fourteenth Amendment's restrictions
on the States . . . Congress does not enforce a constitutional
right by changing what the right is. It has been given the
power ``to enforce,'' not the power to determine what
constitutes a constitutional violation.
Id. at 519. At the same time, the Court emphasized that ``[l]egislation
which deters or remedies constitutional violations can fall within the
sweep of Congress' enforcement power even if in the process it
prohibits conduct which is not itself unconstitutional.'' Id. at 518.
To determine whether such legislation properly abrogates sovereign
immunity, the Court set forth the following test: ``There must be a
congruence and proportionality between the injury to be prevented or
remedied and the means adopted to that end.'' Id. at 519-20. Thus, in
Boerne, the Court clarified that Congress properly exercises its power
under section 5 of the Fourteenth Amendment to abrogate sovereign
immunity either (1) where legislation enforces rights guaranteed by the
Fourteenth Amendment, as interpreted by the courts, or (2) where
legislation sweeps beyond the Fourteenth Amendment but is congruent and
proportional to the injury to be prevented or remedied.
The Court could not have concluded that RFRA simply enforces rights
guaranteed by the Free Exercise Clause, as interpreted by the courts.
Given that RFRA expressly overrides Smith, to have concluded otherwise
would have permitted Congress to alter the scope of the Free Exercise
Clause, as interpreted by the courts. See Boerne, 521 U.S. at 532
(``[RFRA] appears . . . to attempt a substantive change in
constitutional protections.''). Accordingly, the Court applied the
congruence and proportionality test.
In applying the test, the Court declared that ``[t]he
appropriateness of remedial measures must be considered in light of the
evil presented.'' Id. at 530. Thus, while acknowledging that
``[j]udicial deference, in most cases, is [not] based . . . on the
state of the legislative record,'' Id. at 531, the Court examined
RFRA's legislative record. Because ``RFRA's legislative record lacks
examples of modern instances of generally applicable laws passed
because of religious bigotry,'' the Court found that ``it is difficult
to maintain . . . that [RFRA's legislative record] indicate[s] some
widespread pattern of religious discrimination in this country.'' Id.
at 530.
Moreover, the Court found that, because RFRA sweeps so far beyond
the Free Exercise Clause, it is not proportional to the injury to be
prevented or remedied:
Regardless of the state of the legislative record, RFRA
cannot be considered remedial, preventive legislation, if those
terms are to have any meaning. RFRA is so out of proportion to
a supposed remedial or preventive object that it cannot be
understood as responsive to, or designed to prevent,
unconstitutional behavior . . . Preventive measures prohibiting
certain types of laws may be appropriate when there is reason
to believe that many of the laws affected by the congressional
enactment have a significant likelihood of being
unconstitutional . . . RFRA is not so confined.
Id. at 532 (citation omitted).
In light of both the absence of an evil of a magnitude that would
justify an abrogation of sovereign immunity, and the overly broad
sweep, the Court concluded that ``[t]he stringent test RFRA demands of
State laws reflects a lack of proportionality or congruence between the
means adopted and the legitimate end to be achieved.'' Id. at 533.
The principles articulated in Boerne are reflected in both the
reasoning and the result of both Kimel v. Fla. Bd. of Regents, 528 U.S.
62 (2000), and Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S.
356 (2001), in which the Court concluded, respectively, that the Age
Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.
Sec. Sec. 621, et seq., which prohibits employment discrimination on
the basis of age, and Title I of the Americans with Disabilities Act of
1990 (ADA), 42 U.S.C. Sec. Sec. 12111, et seq., which prohibits
employment discrimination on the basis of disability, were not valid
exercises of congressional power to abrogate sovereign immunity.
In Kimel, the Court began by observing that the 11th Amendment
``does not provide for Federal jurisdiction over suits against
nonconsenting States.'' Kimel, 528 U.S. at 73 (citations omitted).
Nevertheless, the Court recognized that States are not immune from suit
by individuals in Federal court where both (1) ``Congress unequivocally
expressed its intent to abrogate that immunity,'' and (2) ``Congress
acted pursuant to a valid grant of constitutional authority.'' Id.
(citation omitted).
Undertaking this two-step analysis, the Court first concluded that,
in enacting the ADEA, Congress clearly expressed its intent to abrogate
the rights that States enjoy under the 11th Amendment:
To determine whether a Federal statute properly subjects
States to suits by individuals, we apply a simple but stringent
test: Congress may abrogate the States' constitutionally
secured immunity from suit in Federal court only by making its
intention unmistakably clear in the language of the statute. We
agree with petitioners that the ADEA satisfies that test. . . .
Read as a whole, the plain language of these provisions clearly
demonstrates Congress' intent to subject the States to suit for
money damages at the hands of individual employees.
Id. at 73-74 (quotation omitted). The Court, however, went on to hold
that Congress did not properly exercise its authority under section 5
of the Fourteenth Amendment to abrogate sovereign immunity.
As in Boerne, the Court in Kimel recognized that Congress may
abrogate sovereign immunity either (1) where legislation enforces
rights guaranteed by the Fourteenth Amendment, as interpreted by the
courts, or (2) where ``prophylactic'' legislation is congruent and
proportional to the injury to be prevented or remedied. Id. at 81.
Because classifications based on age, unlike classifications based on
race or sex, do not enjoy a presumption of unconstitutionality that may
be overcome only upon the requisite evidentiary showing, see, e.g.,
Mass. Bd. of Retirement v. Murgia, 427 U.S. 307 (1976), the ADEA's
broad prohibition of employment discrimination based on age does not
purport to simply enforce rights guaranteed by the Equal Protection
Clause. Accordingly, the Court applied the congruence and
proportionality test.
Although the Court acknowledged that ``[i]t is for Congress in the
first instance to determine whether and what legislation is needed to
secure the guarantees of the Fourteenth Amendment, and its conclusions
are entitled to much deference,'' and that ``Congress must have wide
latitude in determining where [the] line [between appropriate remedial
legislation and a substantive redefinition of the Fourteenth Amendment
right at issue] lies,'' the Court affirmed that ``there must be a
congruence and proportionality between the injury to be prevented or
remedied and the means adopted to that end.'' Kimel, 528 U.S. at 80-81
(quotations omitted). The Court defined the congruence and
proportionality test as an inquiry into both (1) whether the law is in
proportion to its remedial or preventive objective such that it can be
understood as responsive to, or designed to prevent, unconstitutional
behavior (hereinafter, ``the proportionality inquiry''), and (2)
whether the legislative record contains evidence of unconstitutional
conduct that reveals a widespread pattern of discrimination by States
against individuals (hereinafter, ``the evidentiary inquiry''). Id. at
81-82.
With respect to the proportionality inquiry, the Court reached the
following conclusion:
Judged against the backdrop of our equal protection
jurisprudence, it is clear that the ADEA is so out of
proportion to a supposed remedial or preventive object that it
cannot be understood as responsive to, or designed to prevent,
unconstitutional behavior. The Act, through its broad
restriction on the use of age as a discriminating factor,
prohibits substantially more State employment decisions and
practices than would likely be held unconstitutional under the
applicable equal protection, rational basis standard.
Id. at (86 quotation omitted). In reaching its conclusion, the Court
relied on the fact that classifications based on age, unlike
classifications based on race or sex, do not enjoy a presumption of
unconstitutionality that may be overcome only upon the satisfaction of
the requisite evidentiary showing:
Age classifications . . . cannot be characterized as so
seldom relevant to the achievement of any legitimate State
interest that laws grounded in such considerations are deemed
to reflect prejudice and antipathy. Older persons . . . have
not been subjected to a history of purposeful unequal
treatment. Old age also does not define a discrete and insular
minority because all persons, if they live out their normal
life spans, will experience it. . . .
. . . Under the Fourteenth Amendment, a State may rely on age
as a proxy for other qualities, abilities, or characteristics
that are relevant to the State's legitimate interests.
Id. at 83-84 (quotations and citation omitted); see also id. at 85 (age
is a rational proxy for the physical and mental fitness that certain
types of employment require).
With respect to the evidentiary inquiry, the Court found that, in
enacting the ADEA, ``Congress never identified any pattern of age
discrimination by the States, much less any discrimination whatsoever
that rose to the level of constitutional violation.'' Id. at 89. In
doing so, the Court bolstered its conclusion that the ADEA did not
constitute a valid exercise of congressional power to abrogate
sovereign immunity:
``A review of the ADEA's legislative record as a whole . . .
reveals that Congress had virtually no reason to believe that
State and local governments were unconstitutionally
discriminating against their employees on the basis of age.''
Id. at 91.
Significantly, the Court expressly stated that its finding under
the proportionality inquiry, standing alone, was not dispositive:
That the ADEA prohibits very little conduct likely to be held
unconstitutional, while significant, does not alone provide the
answer to our Sec. 5 inquiry. Difficult and intractable
problems often require powerful remedies, and we have never
held that Sec. 5 precludes Congress from enacting reasonably
prophylactic legislation. . . . The appropriateness of remedial
measures must be considered in light of the evil presented.
Id. at 88-89 (quotation omitted). Similarly, the Court made clear that
its finding under the evidentiary inquiry, standing alone, was not
dispositive:
Although that lack of support is not determinative of the
Sec. 5 inquiry, Congress' failure to uncover any significant
pattern of unconstitutional discrimination here confirms that
Congress had no reason to believe that broad prophylactic
legislation was necessary in this field.
Id. at 91 (citations omitted). Thus, its holding necessarily rested on
both ``the indiscriminate scope of the Act's substantive requirements''
and ``the lack of evidence of widespread and unconstitutional age
discrimination by the States.'' Id.
In Garrett, the Court engaged in a similar analysis. Because
classifications based on disability are presumptively constitutional,
see, e.g., City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432
(1985), Title I of the ADA's broad prohibition of employment
discrimination does not purport to simply enforce rights guaranteed by
the Equal Protection Clause. Accordingly, after confirming that, in
enacting Title I of the ADA, Congress acted pursuant to section 5 of
the Fourteenth Amendment, Garrett, 531 U.S. at 363-64, the Court
applied the congruence and proportionality test.
The Court first ``examine[d] whether Congress identified a history
and pattern of unconstitutional employment discrimination by the States
against the disabled.'' Id. at 369. In doing so, the Court found that
``[t]he legislative record of the ADA . . . simply fails to show that
Congress did in fact identify a pattern of irrational State
discrimination in employment against the disabled.'' Id.
The Court then found that, even if it were otherwise, ``the rights
and remedies created by the ADA against the States would raise . . .
concerns as to congruence and proportionality.'' Id. at 372. Its
assessment that Title I of the ADA sweeps far more broadly than the
Equal Protection Clause was predicated on the absence of a presumption
of unconstitutionality, given that disabled individuals constitute a
``large and amorphous class'' that ``possesses distinguishing
characteristics relevant to interests the State has authority to
implement.'' Id. at 366 (quotations omitted).
In light of its findings, the Court held that Title I of the ADA
did not abrogate sovereign immunity:
[I]n order to authorize private individuals to recover money
damages against the States, there must be a pattern of
discrimination by the States which violates the Fourteenth
Amendment, and the remedy imposed by Congress must be congruent
and proportional to the targeted violation. Those requirements
are not met here.
Id. at 374.
In sum, the case law confirms that the interplay between the 11th
Amendment and section 5 of the Fourteenth Amendment requires an
analysis of whether (1) Congress unequivocally expressed its intent to
abrogate sovereign immunity, and (2) Congress acted pursuant to a valid
grant of constitutional authority. With respect to the second step of
the analysis, the threshold inquiry is whether (1) the legislation at
issue is legislation that enforces rights guaranteed by the Fourteenth
Amendment, as interpreted by the courts, or (2) the legislation at
issue is prophylactic legislation that is congruent and proportional to
the injury to be prevented or remedied. Legislation that generally
prohibits the use of a classification that is presumptively
unconstitutional falls under the first category, and no further inquiry
is necessary. See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). In
contrast, legislation that generally prohibits the use of a
classification that is presumptively constitutional falls under the
second category, and the congruence and proportionality test applies.
See Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001);
Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000); City of Boerne v.
Flores, 521 U.S. 507 (1997). The congruence and proportionality test is
an inquiry into both (1) whether the law is in proportion to its
remedial or preventive objective such that it can be understood as
responsive to, or designed to prevent, unconstitutional behavior, and
(2) whether the legislative record contains evidence of
unconstitutional conduct that reveals a widespread pattern of
discrimination by States against individuals.
II. SECTION 11(A) OF ENDA WOULD PROPERLY ABROGATE SOVEREIGN IMMUNITY
Where ENDA is concerned, there is no question that section 11(a)
would clearly express congressional intent to abrogate sovereign
immunity. Thus, we focus our analysis on whether section 11(a) would
constitute a valid exercise of congressional power under section 5 of
the Fourteenth Amendment. Given the principled conclusion that
classifications based on sexual orientation or gender identity are
presumptively unconstitutional, ENDA's prohibition of employment
discrimination based on sexual orientation or gender identity simply
enforces rights guaranteed by the Equal Protection Clause. See
Sec. II.A. infra. Even if this were not so, the proposed scope of ENDA
is in proportion to the scope of the Equal Protection Clause, and there
is evidence of a widespread pattern of irrational discrimination by
States against their LGBT employees, and therefore ENDA satisfies the
congruence and proportionality test. See Sec. II.B. infra. Either way,
section 11(a) of ENDA would properly abrogate sovereign immunity.
At the outset, we emphasize that municipal employment
discrimination has unique relevance to the analysis where sexual
orientation and gender identity are concerned. See Tennessee v. Lane,
541 U.S. 509, 527 n.16 (2004) (``THE CHIEF JUSTICE dismisses as
irrelevant the portions of this evidence that concern the conduct of
nonstate governments. This argument rests on the mistaken premise that
a valid exercise of Congress' Sec. 5 power must always be predicated
solely on evidence of constitutional violations by the States
themselves. . . . [O]ur cases have recognized that evidence of
constitutional violations on the part of non-state governmental actors
is relevant to the Sec. 5 inquiry.'') (quotation omitted). This is so
because such discrimination has often been the product of
unconstitutional discrimination by States against LGBT individuals. In
particular, until recently, State laws criminalizing same-sex sodomy
have translated into high barriers to municipal employment for LGBT
individuals. See Lawrence v. Texas, 539 U.S. 558, 575 (2003) (``[T]he
Texas criminal conviction carries with it the other collateral
consequences always following a conviction, such as notations on job
application forms.''). This has been true across all areas of municipal
employment, including law enforcement and public education. See, e.g.,
Nat'l Gay Task Force v. Bd. of Educ., 729 F.2d 1270, 1273 (10th Cir.
1984) (``We see no constitutional problem in the statute's permitting a
teacher to be fired for engaging in `public homosexual activity.' '');
Clearfield City v. Dep't of Employment Sec., 663 P.2d 440, 443 (Utah
1983) (``The act of sodomy violated the laws the officer and his
employer had a sworn duty to uphold and enforce. . . . This entire
course of events . . . would surely have a significant adverse effect
upon the officer's credibility as a police officer and as a witness in
the courts of law.''). The adverse effects of such laws on LGBT
individuals linger to this day.
Accordingly, we present scores of instances in which both States
and municipalities across the country have engaged in unconstitutional
discrimination against their employees on the basis of sexual
orientation or gender identity. See Sec. II.B.2. infra. Such
discrimination encompasses all types of adverse employment actions--
whether termination, refusal to hire, refusal to promote, hostile work
environment, differential terms and conditions of employment,
retaliation, or censorship. It encompasses actual as well as perceived
sexual orientation or gender identity, as well as associational
discrimination based on sexual orientation or gender identity.
Significantly, it is commonly intertwined with unconstitutional
discrimination on the basis of sex, whether in the form of sex
stereotyping, sexual harassment, or associational discrimination based
on sex.
A. ENDA Would Properly Abrogate Sovereign Immunity Because
Classifications Based on Sexual Orientation or Gender Identity
Are Presumptively Unconstitutional Absent the Requisite
Evidentiary Showing
As a prudential matter, the Supreme Court has thus far refrained
from ruling on whether classifications on the basis of sexual
orientation enjoy a presumption of constitutionality that may be
overcome only upon the requisite evidentiary showing. See Romer v.
Evans, 517 U.S. 620, 632 (1996) (``[I]f a law neither burdens a
fundamental right nor targets a suspect class, we will uphold the
legislative classification so long as it bears a rational relation to
some legitimate end. Amendment 2 fails, even defies, this conventional
inquiry.'') (citation omitted); see also Hooper v. Bernalillo County
Assessor, 472 U.S. 612, 618 (1985) (``[I]f the statutory scheme cannot
pass even the minimum rationality test, our inquiry ends.''). The Court
has not yet had an opportunity to consider whether classifications on
the basis of gender identity merit such a presumption.
The principled conclusion is that classifications based on sexual
orientation or gender identity are presumptively unconstitutional. Each
of the factors that independently renders a classification especially
suspect because the classification is especially likely to reflect
invidious discrimination is satisfied where classifications based on
sexual orientation or gender identity are concerned. LGBT people have
``experienced a history of purposeful unequal treatment'' and have
``been subjected to unique disabilities on the basis of stereotyped
characteristics not truly indicative of their abilities.'' Cleburne,
473 U.S. at 441, 445 (quotation omitted). In addition, neither sexual
orientation nor gender identity is an aspect of personal identity that
an individual either can or should be compelled to change in order to
escape governmental discrimination, see Frontiero v. Richardson, 411
U.S. 677, 685, 686 (1973), and LGBT people are particularly vulnerable
politically so as to ``command extraordinary protection from the
political processes,'' Murgia, 427 U.S. at 313, although neither of
these factors is essential to a finding that a classification is
presumptively unconstitutional. See generally Br. of Amici Curiae Nat'l
Lesbian & Gay Law Ass'n, et al., Lawrence v. Texas, No. 02-102, 2003 WL
152348 (Jan. 16, 2003) (enclosed).
[Editor's Note: The enclosed information referred to may be found
at: www.aclu.org/files/assets/ACLU_Letter_to_Senate_HELP_Committee_
on_ENDA_and_Sovereign_Immunity_Enclosure_Part_1.pdf.]
It cannot be seriously disputed that LGBT people have long suffered
and continue to suffer systemic and egregious discrimination. See
Varnum v. Brien, 763 N.W.2d 862, 889 (Iowa 2009) (``The County does
not, and could not in good faith, dispute the historical reality that
gay and lesbian people as a group have long been the victims of
purposeful and invidious discrimination because of their sexual
orientation.'') (ruling under State analog to Equal Protection Clause);
Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 434 (Conn. 2008)
(``There is no question . . . that gay persons historically have been,
and continue to be, the target of purposeful and pernicious
discrimination due solely to their sexual orientation.'') (ruling under
State analog to Equal Protection Clause); In re Marriage Cases, 183
P.3d 384, 442 (Cal. 2008) (``[S]exual orientation is a characteristic .
. . that is associated with a stigma of inferiority and second-class
citizenship, manifested by the group's history of legal and social
disabilities.'') (citations omitted) (ruling under State analog to
Equal Protection Clause); Tanner v. Or. Health Scis. Univ., 971 P.2d
435, 447 (Or. Ct. App. 1998) (``[C]ertainly it is beyond dispute that
homosexuals in our society have been and continue to be the subject of
adverse social . . . prejudice.'') (ruling under State analog to Equal
Protection Clause).
It also cannot be seriously disputed that one's sexual orientation
and one's gender identity are not indicative of one's ability to
participate in or contribute to society. See Varnum, 763 N.W.2d at 892
(``[I]t is clear sexual orientation is no longer viewed in Iowa as an
impediment to the ability of a person to contribute to society.'');
Kerrigan, 957 A.2d at 435 (``[H]omosexuality bears no relation at all
to an individual's ability to contribute fully to society.'')
(quotation omitted); Marriage Cases, 183 P.3d at 442 (``[S]exual
orientation is a characteristic . . . that bears no relation to a
person's ability to perform or contribute to society.'') (citation
omitted); Tanner, 971 P.2d 435 at 447 (``[C]ertainly it is beyond
dispute that homosexuals in our society have been and continue to be
the subject of adverse social stereotyping.''); see also http://
www.aclu.org/pdfs/lgbt/ discrim_map_bw.pdf (21 States and the District
of Columbia have sexual orientation-inclusive civil rights laws; 13
States and the District of Columbia have gender identity-inclusive
civil rights laws).
Moreover, sexual orientation and gender identity are so intrinsic
to personal identity that, even if one could, one should not be
compelled to change them to escape governmental discrimination. See
Varnum, 763 N.W.2d at 893 (``Sexual orientation is not the type of
human trait that allows courts to relax their standard of review
because the barrier is temporary or susceptible to self-help.'');
Kerrigan, 957 A.2d at 438-39 (``This prong of the suspectness inquiry
surely is satisfied when, as in the present case, the identifying trait
is so central to a person's identity that it would be abhorrent for
government to penalize a person for refusing to change it. In other
words, gay persons, because they are characterized by a central,
defining trait of personhood, which may be altered if at all only at
the expense of significant damage to the individual's sense of self are
no less entitled to consideration as a suspect or quasi-suspect class
than any other group that has been deemed to exhibit an immutable
characteristic. To decide otherwise would be to penalize someone for
being unable or unwilling to change a central aspect of individual and
group identity, a result repugnant to the values animating the
constitutional ideal of equal protection of the laws.'') (quotations
and citations omitted); Marriage Cases, 183 P.3d at 442 (``Because a
person's sexual orientation is so integral an aspect of one's identity,
it is not appropriate to require a person to repudiate or change his or
her sexual orientation in order to avoid discriminatory treatment.'')
(citations omitted); Tanner, 971 P.2d 435 at 446-47 (``[T]he focus of
suspect class definition is not necessarily the immutability of the
common, class-defining characteristics, but instead the fact that such
characteristics are historically regarded as defining distinct,
socially-recognized groups that have been the subject of adverse social
or political stereotyping or prejudice. . . . Sexual orientation . . .
is widely regarded as defining a distinct, socially recognized group of
citizens, and certainly it is beyond dispute that homosexuals in our
society have been and continue to be the subject of adverse social and
political stereotyping and prejudice.'').
Finally, LGBT people have long lacked and continue to lack
political power to a sufficient degree to warrant judicial solicitude.
See Varnum, 763 N.W.2d at 895 (``We are convinced gay and lesbian
people are not so politically powerful as to overcome the unfair and
severe prejudice that history suggests produces discrimination based on
sexual orientation.''); Kerrigan, 957 A.2d at 444 (``We apply this
facet of the suspectness inquiry not to ascertain whether a group that
has suffered invidious discrimination borne of prejudice or bigotry is
devoid of political power but, rather, for the purpose of determining
whether the group lacks sufficient political strength to bring a prompt
end to the prejudice and discrimination through traditional political
means. Consequently, a group satisfies the political powerlessness
factor if it demonstrates that, because of the pervasive and sustained
nature of the discrimination that its members have suffered, there is a
risk that that discrimination will not be rectified, sooner rather than
later, merely by resort to the democratic process. Applying this
standard, we have little difficulty in concluding that gay persons are
entitled to heightened constitutional protection despite some recent
political progress.'') (citation omitted); Marriage Cases, 183 P.3d at
443 (``[O]ur cases have not identified a group's current political
powerlessness as a necessary prerequisite for treatment as a suspect
class.'') (emphasis in original); Tanner, 971 P.2d 435 at 447
(``[C]ertainly it is beyond dispute that homosexuals in our society
have been and continue to be the subject of adverse . . . political
stereotyping and prejudice.'').
Significantly, Federal case law concluding that discrimination
based on sexual orientation or gender identity is presumptively
constitutional heavily relies on Bowers for the proposition that the
liberty interest in forming an intimate relationship with a partner
does not extend to LGBT people. Bowers has been wholly repudiated. The
Supreme Court has held not only that Bowers ``is not correct today''
but indeed that it ``was not correct when it was decided.'' Lawrence,
539 U.S. at 578. Thus, for example, Lofton v. Sec'y of Dep't of
Children & Fam. Servs., 358 F.3d 804, 818 & n.6 (11th Cir. 2004), is
unpersuasive because it relies on Federal case law that in turn relies
on Bowers. See Equality Found. of Greater Cincinnati, Inc. v. City of
Cincinnati, 128 F.3d 289, 292-93 (6th Cir. 1997) (``[U]nder Bowers . .
. and its progeny, homosexuals [do] not constitute either a `suspect
class' or a `quasi-suspect class' because the conduct which define[s]
them as homosexuals [is] constitutionally proscribable.'') (citation
and footnote omitted); Holmes v. Cal. Army Nat'l Guard, 124 F.3d 1126,
1132 (9th Cir. 1997) (relying on progeny of Bowers); Richenberg v.
Perry, 97 F.3d 256, 260 & n.5 (7th Cir. 1996) (relying on Bowers and
its progeny); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895
F.2d 563, 571 (9th Cir. 1990) (``[A]lthough the Court in [Bowers]
analyzed the constitutionality of the sodomy statute on a due process
rather than equal protection basis, by the [Bowers] majority holding
that the Constitution confers no fundamental right upon homosexuals to
engage in sodomy, and because homosexual conduct can thus be
criminalized, homosexuals cannot constitute a suspect or quasi-suspect
class entitled to greater than rational basis review for equal
protection purposes.'') (citations and footnote omitted); Ben-Shalom v.
Marsh, 881 F.2d 454, 464 (7th Cir. 1989) (``If homosexual conduct may
constitutionally be criminalized, then homosexuals do not constitute a
suspect or quasi-suspect class entitled to greater than rational basis
scrutiny for equal protection purposes.'') (footnote omitted); Woodward
v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989) (``After
[Bowers] it cannot be logically asserted that discrimination against
homosexuals is constitutionally infirm.'').\1\
---------------------------------------------------------------------------
\1\ The remaining Federal case law on which Lofton relies does not
address whether sexual orientation is presumptively constitutional.
---------------------------------------------------------------------------
Moreover, such Federal case law erroneously relies on Romer for the
proposition that classifications based on sexual orientation are
presumptively constitutional. As discussed above, in Romer, the Court
did not reach whether classifications based on sexual orientation are
presumptively constitutional. Thus, such case law is unpersuasive. See,
e.g., Lofton, 358 F.3d at 818 & n.6 (relying on Holmes, 124 F.3d at
1132, and Richenberg, 97 F.3d at 260 n.5, both of which in turn rely on
a misapprehension of Romer).
Finally, we note that discrimination against LGBT people is also
presumptively unconstitutional both because it implicates the liberty
interest in forming an intimate relationship with a same-sex partner,
see, e.g., Witt v. Dep't of Air Force, 527 F.3d 806 (9th Cir. 2008)
(holding, in the public employment context, that a penalty on formation
of an intimate relationship with a same-sex partner is subject to
heightened scrutiny), and because it implicates sex discrimination,
see, e.g., Glenn v. Brumby,_F. Supp. 2d_, No. 1:08-CV-2360-RWS, WL
1849951 (N.D. Ga. June 25, 2009) (transgender State employee was
subjected to sex stereotyping); see also, e.g., Smith v. City of Salem,
378 F.3d 566 (6th Cir. 2004) (transgender municipal employee was
subjected to sex stereotyping); Schroer v. Billington, 577 F. Supp. 2d
293 (D.D.C. 2008) (transgender Federal applicant was subjected to sex
stereotyping and discrimination on the basis of change of sex).
Because classifications based on sexual orientation or gender
identity enjoy a presumption of unconstitutionality that may be
overcome only upon the requisite evidentiary showing, no further
inquiry is necessary. See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).
B. In the Alternative, ENDA Would Properly Abrogate Sovereign Immunity
Because it Would Satisfy the Congruence and Proportionality
Test
1. The Proportionality Inquiry
Even if classifications based on sexual orientation or gender
identity were not presumptively constitutional, ENDA would easily
satisfy the proportionality inquiry. As discussed below, the proposed
scope of ENDA would largely mirror the Equal Protection Clause's
prohibition on irrational discrimination. Moreover, it would be in
proportion to the Equal Protection Clause's prohibition on sex
discrimination. Furthermore, it would be in proportion to the Due
Process Clause's prohibition on penalizing the exercise of a liberty or
expression interest.
The Equal Protection Clause prohibits States from classifying on
any basis where the classification does not even rationally further a
legitimate State interest. Hooper, 472 U.S. at 618. In other words, the
Equal Protection Clause prohibits irrational discrimination by States.
Thus, it is significant that courts have routinely found that
discrimination by States and municipalities against their LGBT
employees lacks even a rational basis. See, e.g., Lovell v. Comsewogue
Sch. Dist., 214 F. Supp. 2d 319 (E.D.N.Y. 2002); Miguel v. Guess, 51
P.3d 89 (Wash. Ct. App. 2002); Emblen v. Port Auth., No. 00 Civ. 8877
(AGS), 2002 WL 498634 (S.D.N.Y. Mar. 29, 2002); Quinn v. Nassau County
Police Dep't, 53 F. Supp. 2d 347 (E.D.N.Y. 1999); Glover v.
Williamsburg Local Sch. Dist. Bd. of Educ., 20 F. Supp. 2d 1160 (S.D.
Ohio 1998); Weaver v. Nebo Sch. Dist., 29 F. Supp. 2d 1279 (D. Utah
1998); Alaska Civil Liberties Union v. Alaska, 122 P.3d 781 (Alaska
2005) (ruling under State analog to Equal Protection Clause);
Snetsinger v. Mont. Univ. Sys., 104 P.3d 445 (Mont. 2004) (same); see
also United States v. Georgia, 546 U.S. 151, 158 (2006) (``[N]o one
doubts that Sec. 5 grants Congress the power to `enforce . . . the
provisions' of the Amendment by creating private remedies against the
States for actual violations of those provisions.'') (emphasis in
original). While significant, it is not surprising that courts have
found that employment discrimination based on sexual orientation or
gender identity is generally irrational.\2\ Simply put, one's sexual
orientation and gender identity have no bearing on one's ability to do
one's job.\3\
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\2\ It need be only that employment discrimination based on sexual
orientation or gender identity is generally irrational. See Nev. Dep't
of Human Res. v. Hibbs, 538 U.S. 721, 727-28 (2003) (``Congress may, in
the exercise of its Sec. 5 power, do more than simply proscribe conduct
that we have held unconstitutional. Congress' power `to enforce' the
Amendment includes the authority both to remedy and to deter violation
of rights guaranteed thereunder by prohibiting a somewhat broader swath
of conduct, including that which is not itself forbidden by the
Amendment's text. In other words, Congress may enact so-called
prophylactic legislation that proscribes facially constitutional
conduct, in order to prevent and deter unconstitutional conduct.'')
(quotation and citation omitted).
\3\ Whether discrimination based on sexual orientation or gender
identity is generally irrational in contexts other than employment is
immaterial to the analysis. See Lane, 541 U.S. at 530-31 (``[N]othing
in our case law requires us to consider title II, with its wide variety
of applications, as an undifferentiated whole. Whatever might be said
about title II's other applications, the question presented in this
case is not whether Congress can validly subject the States to private
suits for money damages for failing to provide reasonable access to
hockey rinks, or even to voting booths, but whether Congress had the
power under Sec. 5 to enforce the constitutional right of access to the
courts. Because we find that title II unquestionably is valid Sec. 5
legislation as it applies to the class of cases implicating the
accessibility of judicial services, we need go no further.'') (citation
and footnotes omitted).
---------------------------------------------------------------------------
Moreover, the factors on which the Court specifically relied in
Kimel and Garrett for the proposition that discrimination based on age
or disability is generally rational are not present where
discrimination based on sexual orientation or gender identity is
concerned. Even courts that have held that classifications based on
sexual orientation or gender identity do not enjoy a presumption of
unconstitutionality have acknowledged that LGBT individuals constitute
a discrete and insular minority who have suffered a history of
discrimination, and that one's sexual orientation and gender identity
are not indicative of one's ability to participate in or contribute to
society. See Conaway v. Deane, 932 A.2d 571, 614 (Md. 2007) (holding
that sexual orientation classifications are subject to rational basis
review under State analog to Equal Protection Clause, but acknowledging
that ``gay, lesbian, and bisexual persons in recent history have been
the target of unequal treatment in the private and public aspects of
their lives, and have been subject to stereotyping in ways not
indicative of their abilities, among other things, to work and raise a
child'') (emphasis added); Andersen v. King County, 138 P.3d 963, 974
(Wash. 2006) (holding that sexual orientation classifications are
subject to rational basis review under State analog to Equal Protection
Clause, but acknowledging that ``[t]here is no dispute that gay and
lesbian persons have been discriminated against in the past'').
Furthermore, ENDA would sweep less broadly than the Equal
Protection Clause in significant ways. In particular, section 8(b) of
ENDA makes express that ENDA would not apply to the differential terms
and conditions of employment that the LGBT employees of 28 States
suffer with respect to the health, pension, and other dependent
benefits that constitute a substantial portion of the compensation
package of employees who may marry their partners in a manner that
would be recognized under ENDA. See www.hrc.org/documents/
Employment_Laws_and_
Policies.pdf. Such differential treatment violates the Equal Protection
Clause. See, e.g., Alaska Civil Liberties Union v. Alaska, 122 P.3d 781
(Alaska 2005) (ruling under State analog to Equal Protection Clause);
Snetsinger v. Mont. Univ. Sys., 104 P.3d 445 (Mont. 2004) (same);
Tanner v. Or. Health Scis. Univ., 971 P.2d 435 (Or. Ct. App. 1998)
(same). ENDA's express limitations serve only to bolster the conclusion
that ENDA would satisfy the proportionality inquiry.
Separate and apart from the analysis above, it is significant that
the discrimination at issue is commonly intertwined with sex
discrimination. See, e.g., Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061
(9th Cir. 2002) (gay employee was subjected to sexual harassment);
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (transgender
municipal employee was subjected to sex stereotyping); Nichols v.
Azteca Rest. Enters., Inc., 256 F.3d 864 (9th Cir. 2001) (gay employee
was subject to sex stereotyping); Glenn v. Brumby,_F. Supp. 2d_, No.
1:08-CV-2360-RWS, WL 1849951 (N.D. Ga. June 25, 2009) (transgender
State employee was subjected to sex stereotyping); Schroer v.
Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) (transgender Federal
applicant was subjected to sex stereotyping and discrimination on the
basis of change of sex). In other words, it is significant that sexual
orientation and gender identity discrimination are contexts in which
sex discrimination persists with particular tenacity. The Court has
already ruled that Congress may abrogate State sovereign immunity where
employment discrimination based on sex is at issue. Fitzpatrick v.
Bitzer, 427 U.S. 445 (1976). The Court has also already ruled that
Congress may continue to enact prophylactic legislation to deter and
remedy sex discrimination to the extent that sex discrimination
persists. Hibbs, 538 U.S. at 730 (``[After Congress enacted title VII,]
State gender discrimination did not cease. . . . States continue to
rely on invalid gender stereotypes in the employment context. . . .
[T]he persistence of such unconstitutional discrimination by the States
justifies Congress' passage of prophylactic Sec. 5 legislation.'').
Thus, in enacting ENDA, Congress would also abrogate sovereign immunity
by virtue of the constitutional concern that employment discrimination
based on sex presents.\4\
---------------------------------------------------------------------------
\4\ The fact that some of the discrimination at issue might not be
intertwined with sex discrimination does not alter the analysis. Again,
``Congress may enact so-called prophylactic legislation that proscribes
facially constitutional conduct, in order to prevent and deter
unconstitutional conduct.'' Hibbs, 538 U.S. at 727-28.
---------------------------------------------------------------------------
It is also significant that, in addition to equality considerations
under the Equal Protection Clause, ENDA would implicate liberty and
expression considerations under the Due Process Clause. See Tennessee
v. Lane, 541 U.S. 509 (2004) (Congress may enforce Due Process rights
under section 5 of the Fourteenth Amendment); City of Boerne v. Flores,
521 U.S. 507 (1997) (Congress may enforce First Amendment rights under
section 5 of the Fourteenth Amendment). The Due Process Clause
prohibits States and municipalities from penalizing their LGBT
employees for exercising their constitutionally protected liberty
interests. See, e.g., Witt v. Dep't of Air Force, 527 F.3d 806 (9th
Cir. 2008) (holding, in the public employment context, that a penalty
on formation of an intimate relationship with a same-sex partner is
subject to heightened scrutiny). It also prohibits States and
municipalities from penalizing their LGBT employees for exercising
their constitutionally protected expression interests. See, e.g.,
Weaver v. Nebo Sch. Dist., 29 F. Supp. 2d 1279 (D. Utah 1998)
(recognizing, in the public employment context, that the censorship of
pro-LGBT expression is unconstitutional). Given that State and
municipal employers routinely penalize their LGBT employees for forming
an intimate relationship with a same-sex partner or for expressing pro-
LGBT viewpoints, see Sec. II.B.2. infra, ENDA would constitute an
appropriate prophylactic measure to deter and remedy such
unconstitutional conduct.
For all of these reasons, the scope of ENDA would largely mirror
the scope of section 1 of the Fourteenth Amendment and therefore
readily satisfy the proportionality inquiry.
2. The Evidentiary Inquiry
We cannot emphasize enough that our data egregiously underreport
the magnitude of the constitutional concern. Precisely because such
discrimination is so prevalent, many LGBT employees are understandably
reluctant to disclose their sexual orientation or gender identity, as
seeking redress for discriminatory acts often necessitates. See
Kerrigan, 957 A.2d at 446 n.40 (Conn. 2008) (``Because of the immediate
and severe opprobrium often manifested against homosexuals once so
identified publicly, members of this group are particularly powerless
to pursue their rights openly in the political arena.'') (quotation
omitted). Moreover, despite some recent favorable legal developments,
many LGBT employees have been understandably discouraged from exploring
suit when they suffer workplace discrimination, given that many courts
have exhibited hostility toward their claims. See, e.g., Ulane v.
Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984) (adverse title
VII ruling against transgender employee); DeSantis v. Pac. Tel. & Tel.
Co., Inc., 608 F.2d 327 (9th Cir. 1979) (adverse title VII ruling
against lesbian and gay employees). Furthermore, our data capture only
a small fraction of the inquiries that we field from the small minority
of LGBT employees who have the wherewithal to contact us, and purport
to represent only a snapshot of our records during recent times.
Accordingly, our catalog below is merely illustrative of the
constitutional concern.
Still, our data confirm that there is, in fact, a widespread
pattern of irrational discrimination by States and municipalities
against their LGBT employees, as reflected in the 87 examples of
discrimination from 35 States--24 examples of State discrimination and
63 examples of municipal discrimination--referenced below.
First, our outreach to the LGBT community over just the past month,
and our review of the inquiries that we have fielded from LGBT
employees over just the past 18 months, readily yielded 16 stories of
irrational discrimination by States and 48 stories of irrational
discrimination by municipalities. The following stories are
illustrative:
Shannon P. Dietz of Baton Rouge, LA.--I was hired in 2006
as a faculty member and coordinator of the 4-H Program at Louisiana
State University. The program had 500 participants, 8-18 years old, and
I built a strong youth program for at-risk and underserved youth. My
job also involved serving as the liaison between the 4-H office and the
University. I had never received a negative comment on any past
evaluations and, in December 2007, I was promoted to office supervisor
of an off-campus parish office. I had also received a Distinguished
Service Award from the 4-H Program.
In April 2009, I was called away from a camping event where I was
supervising at-risk youth. The University's Human Resources manager
said I needed to come back immediately for a meeting. At the meeting,
she informed me that the school had received an anonymous letter saying
that I had a personal ad on a gay dating site. After the meeting was
over, I was not allowed to go back to camp and collect my personal
items because I was told I could not interact with the youth in my
program anymore.
I was immediately put on administrative leave and told I was going
to be fired eventually. However, I refused to quit and, despite the
threats, they did not fire me. Instead, I was demoted from my job as
the office supervisor and taken off all programs involving interacting
with youth. Now, I am researching and writing curricula and my contract
has not been renewed, so I have no job security.
This demotion has been very stressful. Although I have been out to
my family for a long time, I was always very careful not to give any
indications or signs at work about my sexual orientation. My career
with the 4-H Program is ruined because people are starting rumors about
my sexual orientation.
Kathleen Culhane of St. Paul, MN.--I was hired in 1998 as
a research assistant for an orthopedic surgeon at the University of
Iowa. In August 2001, I came out as transgendered, and the surgeon I
worked for immediately quit coming into the lab. The department
administrator told me, to my face and in front of witnesses, that my
condition (transsexuality) was such that they didn't feel I could give
sufficient effort to the department and they were firing me.
I went to the University's affirmative action department, who found
enough merit to my story that my termination was stopped, as long as I
agreed to find work in another department. I had a few interviews, but
no one gave me a second one, so, effectively, I was fired.
I chose to relocate to Minnesota in March 2002, specifically
because the State offers civil rights protections. At the time, it was
overwhelming and terrible to lose my job and leave Iowa and the city I
had lived in for 16 years.
John Schmidt of Fort Mill, SC.--I was hired as a New
Jersey State Trooper in 1982. I loved working in law enforcement and
received many promotions as well as many commendations for my work in
alcoholic beverage control.
In January 1997, I was beaten up by other troopers while on an
assignment. I was undercover waiting for other troopers to arrive in a
sting operation. When they arrived, one of the troopers headed straight
towards me (even though they knew that I was a trooper) and started
beating me with his baton. He knocked me to the ground and kicked me,
shouting anti-gay slurs.
I enjoyed my job, but the incident made me feel scared, depressed,
and very uncomfortable. I filed a lawsuit, but it was dismissed on
procedural grounds because my lawyer missed court deadlines.
The culture of the New Jersey State Troopers is notoriously
intolerant, and it is well-documented in the press and in lawsuits that
many African-American and gay and lesbian troopers have faced workplace
hostility and harassment.
I retired from law enforcement in 2003 on disability because of a
cardiac condition. In all honesty, my cardiac condition is not such
that it would prevent me from working in some capacity in law
enforcement. However, the hostility of my work environment made me
realize that I was lucky to be able to retire before I faced further
harassment or violence.
Gypsey Teague of Pendleton, SC.--In 2002, I was hired as
the Branch Librarian for the Oklahoma City Branch of Langston
University, Oklahoma's only historically black college or university
(HBCU). I have both an MLS and an MBA and so, not only was I the
library director, but I also taught classes in the business department.
In late 2004, after I had been successfully employed at the
University for almost 3 years, I decided to begin the process of
transitioning from male to female. The administration was very
accommodating, both in supportive words and in providing generous
leave, which made my transition very easy. I spoke with the Campus
Director, my Library Director, and the Vice President of Academic
Affairs. All three were helpful, and promised to support me and help in
creating a smooth transition. I was pleased, but not surprised, to find
that this historically black university understood issues of diversity.
With their encouragement, I took an extended vacation over the
Christmas holiday to finalize my transition. When I returned, I
conducted myself as a woman, professionally and properly dressed at all
times, and afforded myself of the bathroom of my new gender. Things
went extremely well, and I felt that success in both my professional
life and my personal life.
I went to a professional conference in February 2005. When I
returned, I was stunned to learn that a student had circulated a hate-
filled petition calling for my removal from campus, and had posted
offensive flyers around the campus.
Various reasons were cited, but all were related to my transgender
identity. I never saw the actual petition but there were over 100
copies circulated throughout the small campus building. I spoke with
the Campus Director, and asked for his assistance in removing the
offensive flyers. I was stunned to hear him say that the student had a
right to freedom of speech, and that he could and would do nothing. In
fact, when other students also complained about these hateful flyers as
being inappropriate, he went so far as to support the right of the
students to pass out the flyers.
The very next day, the Campus Director issued a rule that all
faculty and staff must use the bathrooms in the break room, at the
other end of the building, and not the student bathrooms across the
hall from the library. Surprised by this, I noticed that none of the
other faculty were adhering to this policy. When I mentioned this to
the Director, he told me that he could not control the actions of all
faculty and staff, but that I would adhere to the policy or be
disciplined.
The petition-circulating student, encouraged by the
administration's failure to support me, circulated another petition,
this one stating that God wished me dead, and expressing the hope that
something to this effect should happen. I spoke to several high-level
administrators, who I was sure would see reason at this point. Instead,
they told me my concerns were unwarranted, and to stop causing drama.
Then, suddenly and surprisingly, my teaching schedule for the summer
was changed to the late-night 7:30-10 p.m. time slot. This meant I
would be the last instructor to leave the building, and I would have to
exit into an empty parking lot in a dangerous section of the city.
I decided to apply for a job at another college, even though it
would require relocating. In May 2005, I left Langston University and
accepted a position as Branch Head of the Architecture Library at
Clemson University in South Carolina. Having to relocate was difficult
because my mother was in a nursing home in Oklahoma and she passed away
there before I could return to see her.
Had the administrators who were charged with my welfare stood up
and supported me in the face of mean-spirited prejudice, I think I
would have been able to stay and to prosper. When they failed to take
decisive action, I was forced to choose between my safety, both
emotional and physical, and my job.
Laura J. Doty of Boise, ID.--I was hired in April 1997 as
an Adult Probation Officer in Power County, ID. I was closeted except
for my direct supervisor, who had no problem with my sexuality. It was
a professional environment, and my peer reviews indicated I was
respected and did a good job. I liked being able to help people
overcome difficulties and improve themselves. I had letters of
recommendation from the Prosecuting Attorney, a letter of
recommendation from my direct supervisor, and positive reviews from a
judge and the Public Defender.
In September 1997, I ran into a co-worker from the county building
at a store and introduced my partner to her. Two days later, the Power
County Commissioners called me in and told me I was unhappy at work and
I could quit or be fired. I said they would have to fire me.
After I was fired, I immediately called the Human Rights Commission
in Boise, and they told me I had no basis to make a claim because
sexual orientation is not a protected status. I was devastated because
I considered myself a dedicated employee and hard worker. I cared about
my probationers, and I worked very hard to help them succeed, whether
in getting a GED or staying in a 12-step program.
My partner at the time was in graduate school, so we struggled
financially after I lost the job.
Laura Elena Calvo of Portland, OR.--From 1980 to 1996, I
worked for the Josephine County Sheriff 's Office in Grant's Pass,
Oregon. At the end of my employment, I held the rank of Sergeant,
although, during the course of my employment, I was promoted often and
worked in a variety of capacities including as a S.W.A.T. team
commander and a detective in both the Major Crimes Unit and the
Narcotics Task Force.
During my 16 years at the Sheriff 's Office, I received numerous
commendations, including commendations for removing an automobile
accident victim from a burning vehicle, delivering a baby alongside a
roadway, disarming an armed man intent on harming himself, and for the
expertise and diligence shown in a number of complicated criminal
cases. I was named Deputy of the Year in 1994, and I also taught law
enforcement classes at Rogue Community College and at the Oregon Police
Academy.
Apart from a distinguished employment record and career in law
enforcement, from my earliest recollection at about age 4, I felt I was
very different than other boys. I would have preferred to be born
female. In my late teens, I felt the need to express my female gender
identity, and I began to cross-dress in private. In the day, this sort
of thing was shameful, confusing and considered counter-social. I
compartmentalized that part of my identity, keeping it a very well-kept
secret. I went out of my way to be sure that, when I did express my
gender identity, it was such that it was very unlikely it would be
discovered. I rented a storage locker in another city and another
county where I kept my cross-dressing items.
On Labor Day 1995, I was on duty in an extremely remote area of
Josephine County searching for a fugitive when a police dog attacked
me, penetrating the bones in my leg with its teeth. I suffered major
blood and tissue loss, and my injuries required emergency surgery.
After this incident, I was put on administrative leave until my leg
could heal.
Roughly a month after this attack, the storage unit I rented in
Medford, OR, was broken into and the contents stolen. I was notified of
the theft and requested to file a police report. Since this storage
unit contained only my female effects and belongings, I felt I could
not report the crime because I would need to provide a list of the
stolen property. I also assumed the items would never be recovered
anyways.
However, within a week of the break-in, my immediate supervisor
called me into the Sheriff 's Office for a meeting. Instead of an
office, I was brought into one of our interrogation rooms where I was
informed that the Medford Police Department had recovered my stolen
property alongside some railroad tracks. I was told that I was
personally identified from very personal intimate pictures contained
within the property and that these pictures had been seen by both
Medford County and Josephine County officers.
I was told by my supervisor that the Sheriff felt that I would no
longer be able to perform my duties because of the fact I had been
discovered to dress as a woman and that it would be a big mistake to
try to come back to work.
In the spring of 1996 after my leg had healed, I was ordered to
travel to Portland for a psychiatric determination for fitness of duty.
I went before a panel of doctors, selected by the Sheriff 's Office,
who determined I was not fit to return to work. I was informed that the
Sheriff, in conjunction with the County's Risk Manager and Attorney,
were in the process of putting together a settlement offer in return
for my resignation.
The direct impact of the discrimination I experienced has been
devastating on so many levels. I don't have a college degree or any
other skills except law enforcement. I tried working as a school bus
driver and driving a senior citizen bus, but found the work
unrewarding. I contacted attorneys, but they said I had no legal
protections. Had employment non-discrimination laws been in effect, I
likely would have continued serving the citizens of Josephine County to
this day.
Shawn Wooten of Jonesboro, GA.--In February 2001, I
started working as school bus coordinator for the Henry County School
District in McDonough, GA. I was always considered one of the best
drivers during my 6 years of employment.
In 2006, another employee found a personal ad I had posted 6 years
previously on a gay dating site. She printed it and distributed it at
one of the high schools. In June 2006, as soon as word got out that I
was gay, I was fired. When I pressed for a reason, I was told that it
was ``in the best interests of the school system'' and that I knew the
answer.
I complained to board of education members but got no response. I
also contacted Atlanta Legal Aid and tried to find an attorney to take
my case, but I was told Georgia was a right-to-work State and I had no
legal protection.
I applied for school bus coordinator jobs in other districts, but,
every time, after expressing initial interest, the school district
refused to hire me. I believe that word got around from Henry County
that I was gay. I was unemployed for 2 years. I have Lupus, and I am
constantly in need of medical attention, but couldn't get it because my
insurance was canceled when I was terminated.
Nerissa Belcher of Douglasville, GA.--In September 2005, I
moved to Georgia and applied for a job as a Disease Investigator with
the Fulton County Health Department in Atlanta, GA.
I had originally applied for the job with a male name, but, by the
time they called me back, I had legally changed my name, and so I
started work as Nerissa.
The first month or so with the Health Department went very well. I
did well in the training, and I had highest testing scores of all
disease investigators trained by my mentor. However, the supervisor of
the Department was very uncomfortable with my transition.
The supervisor tried to make my life miserable at work and forbid
me from using the female restroom. I complained to Human Resources, but
my private conversation with them was related to my supervisor without
my consent. In February 2006, I was fired without cause.
When I was fired, I lost my ability to be financially self-
sufficient and to provide assistance to my children. It was also
frustrating because I was extremely well-qualified for my job and was
replaced by a medically untrained Parks Department employee.
Johnny Woodnal of Concord, MA.--I was hired in the spring
of 2002 to teach English at a public high school in Medford, MA.
Medford appealed to me initially because it is a fairly urban district
with a lot of diversity and a need for talented teachers (the turnover
rate is quite high). I loved everything about teaching, and all of my
formal observations were written up in a positive light.
During the spring of my first school year, 1 year after my hire,
the school became aware of my sexual orientation when my partner (now
husband) directed the school musical with me. I was the only openly gay
teacher on staff at the high school at the time.
In 2005, I was told I would not be receiving tenure during the
final month of my tenure year (year three). When no actual proof could
be offered as validation for why my teaching was so bad they did not
want to continue my employment, I pressed for answers. I was told by
the superintendent that I shouldn't be known for my ``activities
outside the classroom,'' which everyone involved took to mean that I
should have been quiet about my sexual orientation rather than open in
dealing with a high school community.
I pursued action with my union, including legal action, but was
told that discrimination could be difficult to prove. The district only
backed down and gave me tenure after students and parents expressed
their outrage. Even after the community forced the administration to
back down and give me tenure, they found other ways to harass me,
continually beating me down professionally and robbing my self-
esteem. I am still in therapy now, nearly 5 years later, in relation in
part to the experience.
My husband and I now have two children, and they are our entire
world. When our daughter came to our family, I knew that I needed to
leave the hostile environment in order to protect my family. So, in
2007, I got a new job with a district outside of the city, serving a
much more heterogeneous and wealthy population. I don't feel quite as
needed as I did by the lower socio-economic groups of Medford.
Camille Hopkins of Portland, OR.--I was hired in 1987 as a
planner for the city of Buffalo in upstate New York. My job offered me
an opportunity to improve the quality of life for poor residents of
Buffalo. I was good at and enjoyed making a difference in people's
lives.
In August 2001, I informed the Mayor of Buffalo that I was a
transgender woman and was hoping he would support my transition in the
workplace. At this time, I had been working for the city of Buffalo for
over 15 years and had developed a method of improving a Federal program
that assists poor HIV+ individuals and persons with AIDS from becoming
homeless. My management method impacted more HIV+ people than ever
before. As a result of my work and initiative, I received a county-wide
civic award.
However, not long after my transition, I was demoted. I was
heartbroken to be removed from the program I had worked so hard to
develop. For the previous 15 years (as a male), I never had difficulty
in the workplace. However, after my transition in September 2002, I
received unwarranted criticism of my work and hostility in the
workplace.
On a ``casual'' Friday in July 2007, I wore a gay pride t-shirt to
work. Later that day, I was informed by the Director of Labor Relations
that someone in my department was offended by my shirt. I was
instructed to remove it or cover it. When I did not, I was charged with
harassment and insubordination. At the informal hearing, the Legal
Department offered to drop the charges if I signed a waiver stating I
would never sue them for past grievances. I refused to sign. I was then
informed they would in all likelihood terminate me after the formal
hearing to follow. This hearing was constantly postponed but the
workplace hostilities continued.
This incident, as well as other workplace transphobic events, put
pressure on me that I never had experienced before. I became anxious
and nervous and had difficulty sleeping at night. My family doctor put
me on medication to help. These conditions eventually affected the
quality of my work. In August 2008, worn down by the stress, depression
and fear of retaliation, I resigned. I filed grievances with the city
of Buffalo Human Resource Department and the Commission on Citizen
Rights as well as the New York State Division of Human Rights and the
Federal EEO Commission, but all to no avail.
Nikki Fultz of Fort Wayne, IN.--This is my 4th year
teaching 5th grade at Adams Elementary, an inner city school in Fort
Wayne, IN. I am out to everyone in my life but my students. All of my
co-workers know about my sexual orientation and are very supportive, as
is my principal.
Last year, my partner and I had a commitment ceremony, and I
legally had my name changed. I had discussed with my principal whether
it would be OK for me to come out to students, and she thought it would
be fine. I was not planning on going into depth, obviously, but
students knew my name changed.
However, my principal checked with our legal department, and they
told her it would be inappropriate. I was told that, if I come out
directly or even indirectly to students, I would be fired. After that,
I was very nervous. Last year, some of my 5th grade students Googled my
name and found out that I am the director of Fort Wayne's Pride
Committee. Luckily, the principal did not find out this had occurred. I
can't relax, though, because the same thing could happen this year. My
partner, who now also teaches school in the same district, was actually
fired for being out at a small high school in northern Indiana, so we
know the threat is very real.
It's also frustrating because, as teachers, we're encouraged to
talk about our families at school. My partner and I are foster parents
and are in the process of adopting a child, and so it's very strange
not to be able to talk about the fact I have a family. I also want to
be honest with my students so that they know I am not ashamed.
Rachel White of Los Angeles, CA.--I was hired as the Chief
Deputy Director of the Department of Children and Family Services for
Los Angeles County in March 2002. I had over 100 direct and next-level
subordinates. I liked being in service to children and families and
thought the challenge of transforming a large government bureaucracy
was exciting. In my time with the County, I was recognized for settling
a large labor dispute without a strike or making ill-advised
concessions, took a 10 percent cut in the Department's budget and still
maintained services at pre-existing levels, and made major progress in
reducing the number of children in out-of-home care.
I told my Director in late May, early June 2002 that I would be
transitioning on the job from male to female. She was supportive and
immediately assumed responsibility for transition planning throughout
the County. The Board of Supervisors gave their verbal approval to my
transition plan, HR was engaged, press releases were developed, and I
wrote an article for the Department Web site's news section.
Three weeks after my transition plan was quietly put in place, my
Director was fired. It is noteworthy that my Director was the only one
who could fire me. The interim director assured me I could transition
on the job, and the CAO assured me all was well; however, in September
2002, 3 weeks before my transition date at work, the interim director
fired me without cause. I was told I was an ``at will employee'' and a
political appointee. I was deeply hurt, shocked and professionally
devastated. I found work again, but my income suffered and so did my
self-esteem.
I filed an official complaint with the County and involved the
Ombudsman, to no avail. I also sought legal advice, but ultimately
decided that the suit wasn't worth the years of legal wrangling that it
would entail and the damage it would cause to other employees in the
Department.
The callousness of the County's actions was inexcusable and clearly
was related to changing my gender identity.
William ``Bart'' Birdsall of Tampa, FL.--I was hired in
1997 as a teacher and then a school librarian and medial specialist for
the School District of Hillsborough County in Tampa, FL.
In July 2005, I was involved in protesting the dismantling of a gay
pride book display at the local public library. I was quoted in the
local paper saying that I was upset that the book display was
prematurely taken down, both as a gay man and a school librarian.
The school superintendent was concerned that I was quoted in the
paper and proceeded to have my behavior reviewed by the school
district's Professional Standards Office. Professional Standards
decided not to punish me for taking part in protests but warned me not
to bring the issue into the workplace. I have always taken my work very
seriously, and to have my professionalism called into question was
hurtful and upsetting.
I continue to work as a school librarian and have always received
satisfactory or outstanding marks on evaluations. I have lots of anger
about the incident and my therapist says I show signs of post-traumatic
stress.
Brianne Rivera of Hollywood, FL.--I was hired as a
Technical Support Specialist for Broward College in August 2007.
Computer repair is my passion, and I liked the job because I could use
my technical knowledge and experience to troubleshoot computer hardware
and software on a daily basis. I also learned to like the social
interaction between myself and the users whose computers I was
repairing. I was given a letter stating that I was dependable, able to
work independently and a skilled technician.
About 2 months prior to my firing from the college, I came out to
my boss as a transgender lesbian. I told him that I was undergoing
hormone therapy and that I would be transitioning on the job.
On Friday, March 27, 2009, I was called on my day off and asked to
come in to work for 2 hours in order to attend a technical staff
meeting. As I was provided only four uniforms and I had worked the four
previous days, my uniforms were in the washing machine. I informed my
boss of this and said I would come in but that it would be in women's
clothes (which up until this point I had not worn to work). He agreed
that that was fine, so I left to attend the meeting.
When I arrived on campus, I started getting multiple hostile looks
from faculty and staff, as they only knew me as a man. This made me
feel uncomfortable and a bit scared. I called one of the other
technicians who I was friendly with in order to meet up with him and
have some safety by being around someone accepting. But, as soon as I
started to explain what was happening, he hung up. This freaked me out,
so I dialed my friend back multiple times, but he wouldn't pick up.
My boss was standing next to my friend when I was repeatedly
calling, and he asked my friend who kept calling him so many times. My
boss claimed that these calls were harassment, and so he moved me to
another shift. Unfortunately, the new shift interfered with all of my
support group, psychological therapy and speech therapy appointments.
It was critical to the treatment of my gender identity disorder that I
make these appointments; so I had to choose between my job with Broward
College and continuing my transition.
Since the incident occurred, my finances have suffered
dramatically, as I still am unemployed. Over the previous 6 years, I
had saved over $14,000 to use towards my gender reassignment surgery.
I've had to spend a lot of my savings, and, now, I may be forced to
give up on transitioning altogether because soon I won't be able to
afford my medications and doctors' visits.
Michael DiSchiavi of Brooklyn, NY.--I was hired as a sixth
grade English teacher at Dyker Heights I.S. 201 in 1998. I wasn't out
at work, except to a few of my colleagues, but I knew there were rumors
about my sexual orientation. Also, during my job interview the school's
principal asked whether I was married or had a girlfriend, so she
probably had her suspicions that I was gay.
I worked for a year and a half without incident. All of my work was
fine, and my observation reports were all satisfactory. In April 2000,
I was called into a meeting with the assistant principal. During the
meeting, he said I was a very hard worker and very conscientious, and
then proceeded to tell me I was not invited to return to teach the
following year. I told him I was confused because I'd always received
satisfactory ratings, to which he replied that I had ``classroom
management'' issues. He said he would do me a favor and let me resign
at the end of the school year, but, if I failed to do so, I would
receive an unsatisfactory rating on my next report.
I reported this threat to my union rep, but he said it would be my
word against theirs if I tried to fight back. Then, 2 days after my
meeting with the assistant principal, my classroom was vandalized with
``faggot'' written across the chalkboard. At this point, I didn't have
tenure, and the union wasn't prepared to back me up. Feeling that I
lacked any other option, I resigned at the end of the school year.
Marlin Earl Bynum of Irving, TX.--I was originally hired
in the summer of 2006 as a mathematics teacher for the Keller Learning
Center, an alternative public high school in Keller, TX. All of my
evaluations for the last 3 years have been ``exceeds expectations,''
which is the highest rating one can receive. I have also been named
teacher of the month. In 2008, I was asked to get qualified to teach
special education, which I did, so I am now the special education
teacher for our school.
Two years ago, I had a student ask me directly if I was gay, and I
said yes. I was called into the assistant principal's office and warned
not to disclose my sexual orientation to students. She warned me that I
endanger myself and my job by being out.
In response to this, I wrote a letter explaining that I wouldn't
hide being gay because I would not send the message to a student that
it was something to be ashamed of. As a result, I had three students
removed from my classroom because their parents were upset about my
sexual orientation.
Another time, I mentioned to my assistant principal that I wanted
to learn to dance Country and Western. She offered to teach me, and I
said I needed to learn to lead and follow, as that is what gay men do
when dancing. In response, she said, ``Eww, Marlin,'' and immediately
changed the subject. Also, last year, my request to have a diversity
training was denied by the assistant principal.
These homophobic incidents have made me feel increasingly isolated.
The more I try to be open at work about my sexual orientation, the more
I am persecuted. I interact with my fellow teachers on a professional
basis, but I have learned to keep personal life and interaction to a
minimum because I realize now that it is too problematic to try and
educate people about LGBT discrimination.
The remaining stories are summarized below:
A transgender scientist was not hired by a Virginia State
agency on account of her gender identity in 2006.
A transgender electrician was not hired by an Ohio State
university on account of her gender identity in 2006.
A lesbian Michigan State corrections officer was fired on
account of her sexual orientation in 2007.
A transgender editor in the Georgia legislative counsel's
office was fired on account of her gender identity in 2007.
A transgender applicant for a position in the Montana
State attorney general's office was not hired on account of her gender
identity in 2008.
A lesbian California State corrections officer was
subjected to a hostile work environment on account of her sexual
orientation in 2008.
A lesbian Virginia State corrections psychologist was
subjected to a hostile work environment on account of her sexual
orientation in 2008.
A gay employee at a New Mexico State university was
constructively discharged on account of his sexual orientation in 2008.
An athletic trainer at a Virginia State military academy
was subjected to a hostile work environment on account of her
association with lesbian individuals in 2008.
A transgender applicant for an analyst position at a
Pennsylvania State agency was not hired on account of his gender
identity in 2008.
A gay employee was fired by a Virginia State museum on
account of his sexual orientation in 2009.
A Virginia State agency retaliated against an employee for
supporting a claim of discrimination based on sexual orientation by a
gay employee in 2009.
A gay North Carolina county deputy planning director was
fired on account of his sexual orientation in 1991.
A gay firefighter at a Washington County fire district was
subjected to a hostile work environment on account of his sexual
orientation in 1996.
A gay nurse at a Pennsylvania county adult day health
services center was subjected to a hostile work environment on account
of his sexual orientation in 1996.
A gay employee at a Florida county clerk's office was
subjected to a hostile work environment on account of his sexual
orientation in 1997.
A gay public school principal and a gay public school
teacher in Indiana were subjected to a hostile work environment on
account of their sexual orientation from 1997 to 2000.
A lesbian firefighter in Florida was subjected to a
hostile work environment on account of her sexual orientation in 2000.
A transgender Florida city public works supervisor was
fired on account of her gender identity in 2001.
A gay public school teacher in Alabama was fired on
account of his sexual orientation in 2002.
A transgender New Hampshire county corrections officer was
subjected to a hostile work environment on account of her gender
identity from 2005 to 2007.
A gay emergency medical technician was fired by a South
Carolina county on account of his sexual orientation in 2006.
A transgender nurse was fired by an Arizona county
hospital on account of his gender identity in 2006.
A transgender Illinois city chief naturalist was fired on
account of her gender identity in 2006.
A gay deputy sheriff in Utah was subjected to a hostile
work environment on account of his sexual orientation in 2007.
A lesbian applicant was not hired by a Maryland city
police department on account of her sexual orientation in 2007.
A lesbian public school teacher in Minnesota was subjected
to a hostile work environment on account of her sexual orientation in
2007.
A gay public school teacher in Virginia was subjected to a
hostile work environment on account of his sexual orientation in 2007.
Lesbian kitchen workers at a Missouri sheriff 's office
were fired on account of their sexual orientation in 2007.
A gay police officer in Michigan was constructively
discharged on account of his sexual orientation in 2008.
A lesbian police officer in New York was subjected to a
hostile work environment on account of her sexual orientation in 2008.
Another lesbian police officer in New York was subjected
to a hostile work environment on account of her sexual orientation in
2008.
A transgender public school teacher in Nevada was fired on
account of her gender identity in 2008.
A perceived gay applicant for a public school teacher
position in Missouri was not hired on account of his perceived sexual
orientation in 2008.
A lesbian public school teacher in Illinois was subjected
to a hostile work environment on account of her sexual orientation in
2008.
A gay applicant for a position in a Missouri county
prosecutor's office was not hired on account of his sexual orientation
in 2008.
A lesbian California State corrections psychiatric
technician was denied permission to accompany her partner to the
hospital during an emergency in 2008.
A gay public school administrator and a bisexual public
school administrator in Kentucky were subjected to a hostile work
environment and denied job-related funding and travel on account of
their sexual orientation in 2008.
A gay public school bus driver in New Jersey was subjected
to a hostile work environment and fired on account of his sexual
orientation in 2008.
Lesbian public school bus drivers in California were
subjected to a hostile work environment on account of their sexual
orientation in 2008.
A gay professor at an Illinois community college was
subjected to a hostile work environment in 2008.
Lesbian nurses at a California county health clinic were
subjected to a hostile work environment on account of their sexual
orientation in 2008.
A lesbian public school teacher in Virginia was subjected
to a hostile work environment on account of her sexual orientation in
2009.
A lesbian public school teacher in Texas was subjected to
a hostile work environment on account of her sexual orientation in
2009.
A public school teacher in Texas was censored for
expressing pro-LGBT viewpoints in 2009.
A transgender public school teacher in New Jersey was
censored from expressing pro-LGBT viewpoints in 2009.
A lesbian Arizona city crime scene investigator was fired
on account of her sexual orientation in 2009.
A lesbian public school guidance counselor in Texas was
subjected to a hostile work environment on account of her sexual
orientation and censored from expressing pro-LGBT viewpoints in 2009.
Second, a partial survey of formal and informal advocacy on behalf
of LGBT State and municipal employees reveals another 8 instances of
irrational discrimination against LGBT State employees and another 15
instances of irrational discrimination against LGBT municipal
employees. See Examples of Anti-LGBT Discrimination by State and
Municipal Employers (enclosed).
[Editor's Note: The enclosed material referred to may be found as
Attachment 1 at the end of this letter].
Separate and apart from the 86 examples referenced above, 28 States
discriminate against all of the LGBT employees in their workforce in
the terms and conditions of their employment by refusing to extend
dependent employment benefits to their same-sex domestic partners--
health and pension benefits that are often critical to the well-being
of the employee's family. See www.hrc.org/documents/
Employment_Laws_and_Policies.pdf. Significantly, of the States that
have come to offer same-sex domestic partner benefits, several have
done so only in response to litigation. See, e.g., Alaska Civil
Liberties Union v. Alaska, 122 P.3d 781 (Alaska 2005); Snetsinger v.
Mont. Univ. Sys., 104 P.3d 445 (Mont. 2004); Tanner v. Or. Health Scis.
Univ., 971 P.2d 435 (Or. Ct. App. 1998); Bedford v. N.H. Cmty.
Technical College Sys., Nos. 04-E-229, 04-E-230, 2006 WL 1217283 (N.H.
Super. Ct. May 3, 2006); Levitt v. Bd. of N.M. Retiree Health Care
Auth., No. CV-2007-01048 (N.M. Dist. Ct.) (settled).
In sum, even our cursory and limited investigation yielded numerous
examples of discrimination by States and municipalities against their
LGBT employees. All such evidence confirms a significant pattern of
employment discrimination based on sexual orientation or gender
identity by States and municipalities.
For the foregoing reasons, the ACLU submits that, in enacting ENDA,
Congress would properly exercise its authority under section 5 of the
Fourteenth Amendment to abrogate the rights of States under the 11th
Amendment.
Sincerely,
Matthew A. Coles,
Director, ACLU LGBT & AIDS Project.
Attachment 1.--Examples of Anti-LGBT Discrimination By State
and Municipal Employers
Sources:
Nan D. Hunter, Courtney G. Joslin & Sharon M. McGowan,
Government Employees, in The Rights of Lesbians, Gay Men, Bisexuals,
and Transgender People: The Authoritative ACLU Guide to a Lesbian, Gay,
Bisexual or Transgender Person's Rights 35 (4th Ed. 2004) [Hereinafter
Hunter, et al., Government Employees].
ACLU, Annual Update of the ACLU's Nationwide Work on LGBT
Rights and HIV/AIDS (2003, 2004, 2005, 2006, 2007) [hereinafter ACLU,
Annual Update 200x].
Christopher E. Anders, Federally Funded Religion Will
Trample Civil Rights, in ACLU, Annual Update 2003, at 18 [hereinafter
Anders].
James Esseks, How ``Sodomy'' Laws Affect You, in ACLU,
Annual Update 2003, at 8 [hereinafter Esseks].
Number of examples:
State: 8
Local: 15
Total: 23
Pre-1985: 7
States represented:
CA, DE, GA, IN, KS, MD, MI (2), MN, NM, NY (2), OH (2), SC, TX
(3), UT (2), WA (2), WI
Employer types:
Law Enforcement: 6
Education: 10
Health/Welfare: 2
Other: 5
CALIFORNIA
Debro v. San Leandro Unified School District
(local--school district/teacher)
``When Karl Debro, a heterosexual high school teacher in the San
Leandro public schools, expressed his opposition to racism and
homophobia in a classroom discussion, the school disciplined him for
raising `objectionable' topics in class. He sued the school district in
Federal court, arguing that the district had violated his First
Amendment right to free expression. After the trial court ruled against
him, the ACLU of Northern California helped his appeal with a friend-
of-the-court brief, arguing that Debro's speech was constitutionally
protected. Before the Federal appeals court heard the case, the case
settled favorably for Debro. Cooperating attorneys Thomas R. Burke and
Eric M. Stahl, Ann Brick and Maggie Crosby of the ACLU of Northern
California, and Romana Mancini of the Project authored the brief, which
was joined by Lambda Legal and the California Teachers Association.''
ACLU, Annual Update 2003, 27.
DELAWARE
Aumilier v. University of Delaware
(State--university/professor)
434 F. Supp. 1273 (D. Del. 1977) (invalidating discharge of college
teacher who had been quoted in several newspapers about gay rights).
Hunter, et al., Government Employees 46 n. 45.
GEORGIA
Shahar v. Bowers
(State--Attorney General/attorney)
``In Shahar v. Bowers, Robin Shahar was denied the opportunity to
work in the Georgia Attorney General's Office after the State attorney
general, Michael Bowers . . . learned that she had engaged in a private
commitment ceremony with her female partner. Bowers had insisted that
the public would be confused if an open lesbian worked at an office
that was charged with the mission of upholding Georgia's laws,
including the sodomy law that was still in force at the time. The
Eleventh Circuit Court of Appeals allowed Bowers to revoke his job
offer. It agreed that there could be a loss of morale or cohesiveness
from allowing an open lesbian to work in the attorney general's office,
enforcing the State's criminal laws. In upholding Bowers' decision, the
court stressed `the sensitive nature of the pertinent professional
employment.' Hunter, et al., Government Employees 40 (citing Shahar v.
Bowers, 114 F.3d 1097, 1108, 1110 (11th Cir. 1997) (en banc), reh'g
denied, 120 F.3d 211 (1997), cert. denied, 522 U.S. 1049 (1998)). See
Hunter, et al., Government Employees 46 n. 32-34. See also Esseks, at 9
(``Public employers have fired or refused to hire lesbians and gay men
based on laws against intimacy. For example, Georgia's attorney general
fired Robin Shahar, an attorney in his office, based on his assumption
that, as a lesbian, she must be violating the State's sodomy law.'').
INDIANA
Cornell v. Roberson
(State--agency/employee)
``When the State of Indiana denied employee Jana Cornell's request
for bereavement leave so she could attend the funeral of her partner's
father, the Indiana Civil Liberties Union sued the State. The ICLU
argued that the exclusion of same-sex partners from the bereavement
leave policy violates the State constitution. A trial court recently
dismissed Cornell's lawsuit, saying that the bereavement leave policy
is lawful because it discriminates based on marriage not sexual
orientation. An appeal is pending.'' ACLU, Annual Update 2003, at 36.
KANSAS
PFLAG Mom Silenced for Speaking Out
(local--library/employee)
``The day of the historic Lawrence v. Texas Supreme Court decision,
PFLAG mom Bonnie Cuevas, an employee of the Topeka and Shawnee County
Public Library in Kansas, received a few unsolicited phone calls at
work from friends and reporters about the decision. The following day,
after a story about the decision featuring comments by Cuevas appeared
on the front page of USA Today, library supervisors told Cuevas she was
never to talk about the Lawrence decision at work again. To justify the
censorship, the library managers told Cuevas that a co-worker had
complained that Cuevas was creating a `hostile work environment.' When
Cuevas asked whether her talking with the press had been a concern, the
managers told her it was not. PFLAG contacted the Project, which sent a
letter to the library warning that it is a violation of the First
Amendment to censor the speech of public employees about matters of
public concern and demanded that the library lift its restrictions on
Cuevas's speech. The library ultimately agreed to these demands and
agreed that Cuevas was free to discuss the Lawrence decision at work.''
ACLU, Annual Update 2004, at 39.
MARYLAND
Ancanfora v. Board of Education
(local--board of education/teacher)
491 F.2d 498 (4th Cir. 1974) (holding that a teacher could not be
transferred to administrative position solely because he admitted in
press interviews that he was gay). Hunter, et al., Government Employees
46 n. 45.
MICHIGAN
Mack v. City of Detroit
(local--city/police officer)
``A lesbian police officer was discriminated against because of her
sexual orientation and sued the city of Detroit under Detroit's human
rights ordinance. Detroit argued in court that it could not be sued in
State court under its own local law. The case was appealed all the way
to the Michigan Supreme Court, which agreed with the city. The court
ruled that there is no right to sue in State court under a local civil
rights law. The ACLU of Michigan filed a friend-of-the-court brief in
support of the lesbian police officer's right to sue. ACLU attorneys
Jay Kaplan and Mike Steinberg worked on the case with Saura Sahu of the
Sugar Justice Center at the University of Michigan Law School.'' ACLU,
Annual Update 2003, at 43-44.
Substitute Teacher `Wrongful Discharge'
(local--school district/substitute teacher)
``When a gay substitute teacher was terminated after telling
students he was gay and had a partner, the ACLU of Michigan wrote a
letter to the school district demanding that the teacher be reinstated.
The school district invited him back.'' Docket: Discrimination, in
ACLU, Annual Update 2004, at 39, 43.
MINNESOTA
McConnell v. Anderson
(State--university/employee)
451 F.2d 193, 196 (8th Cir. 1971) (University of Minnesota employee
fired for attempting to secure license to marry his same-sex partner).
Hunter, et al., Government Employees 46 n. 48.
NEW MEXICO
Bernalillo County Assessor--Retaliatory Discharge
(local--county assessor's office/employee)
``The ACLU of New Mexico represents an employee of the Bernalillo
County Assessor's office who was subjected to threatening comments by
coworkers and other discriminatory work conditions related to his
sexual orientation. In April 2005, the employee filed an internal
complaint; in retaliation, the Assessor's office discharged him. The
affiliate sent a demand letter seeking reinstatement of the employee
and back pay.'' Docket: Discrimination, in ACLU, Annual Update 2006, at
50, 54.
NEW YORK
Lovell v. Comsewogue School District
(local--school district/teacher)
``Finally, in 2002, a Federal district court in New York ruled that
a lesbian high school teacher who had sued school officials for failing
to take measures to prevent students from harassing her based on her
sexual orientation stated a valid equal protection claim.'' Hunter, et
al., Government Employees 40 (citing Lovell v. Comsewogue Sch. Dist.,
214 F. Supp. 2d 319 (E.D.N.Y. 2002). But cf. Schroeder v. Hamilton Sch.
Dist., 282 F.3d 946 (7th Cir. 2002) (rejecting comparable claim), cert.
denied, 123 S. Ct. 435 (2002)). See Hunter, et al., Government
Employees 45 n. 28.
Quinn v. Nassau County Police Department
(local--police department/police officer)
``[I]n Quinn v. Nassau County Police Department, a Federal district
court in New York agreed with a gay police officer who alleged that the
police department violated his constitutional right to equal protection
when it looked the other way and allowed officers to harass and abuse
him on the job. Although the police department insisted that it was
legal to discriminate because of sexual orientation, the judge strongly
disagreed: `[G]overnment action . . . cannot survive rational basis
review when it is motivated by irrational fear and prejudice towards
homosexuals.' '' Hunter, et al., Government Employees 41 (citing Quinn
v. Nassau County Police Dep't, 53 F. Supp. 2d 347, 356, 357 (E.D.N.Y.
1999)). See Hunter, et al., Government Employees 46 n. 36-37).
OHIO
Rowland v. Mad River Local School District
(local--school district/guidance counselor)
``[A] Federal appeals court allowed an Ohio school system to fire a
guidance counselor after she told a secretary and several other
teachers that she was bisexual.'' Hunter, et al., Government Employees
39 (citing Rowland v. Mad River Local Sch. Dist., 730 F.2d 444, 446
(6th Cir. 1984), cert. denied 470 U.S. 1009 (1985) (``Justices Marshall
and Brennan vigorously dissented from the decision of the Supreme Court
not to hear Rowland's case, insisting that `discrimination against
homosexuals or bisexuals based solely on their sexual preference raises
significant constitutional questions under both prongs of our settled
equal protection analysis.' 470 U.S. at 1014 (Brennan, J.,
dissenting).''). See Hunter, et al., Government Employees 45 n. 21.
Glover v. Williamsburg Local School District Board of Education
(local--school district/teacher)
``In Glover v. Williamsburg Local School District Board of
Education, decided in 1998, an Ohio Federal district court ordered that
the school reinstate a gay teacher who had been fired because of
`animus toward [the teacher] as a homosexual.' '' Hunter, et al.,
Government Employees 39 (citing Glover v. Williamsburg Local Sch. Dist.
Bd. of Educ., 20 F. Supp. 2d 1160 (S.D. Ohio 1998)). See Hunter, et
al., Government Employees 45 n. 25.
SOUTH CAROLINA
Dawson v. State Law Enforcement Division
(State--State law enforcement division/police officer)
``[I]n a 1992 case, a South Carolina police officer was fired for
inappropriate sexual conduct with another man. The police officer had
insisted that he was not homosexual and that the men had only been
masturbating together in the same room. Nevertheless, the court ruled
against him on the basis that, regardless of whether or not he was gay,
the firing was permissible because the Supreme Court had held in Bowers
v. Hardwick that there was no fundamental right of privacy to engage in
homosexual sex.'' Hunter, et al., Government Employees 40-41 (citing
Dawson v. State Law Enforcement Div., 1992 WL 208967 (D.S.C. 1992)).
See Hunter, et al., Government Employees 46 n. 35.
TEXAS
Childers v. Dallas Police Department
(local--city police department/prospective property room employee)
``The Dallas Police Department, in particular, has been the subject
of repeated lawsuits. In 1981, the department refused to hire Steven
Childers, an openly gay man, in its property room. When Childers sued,
a Federal district court held that because many people openly despise
and fear homosexuals, the police department could refuse to hire him.
The court found, `There [were] also legitimate doubts about a
homosexual's ability to gain the trust and respect of the personnel
with whom he works.' '' Hunter, et al., Government Employees 41 (citing
Childers v. Dallas Police Dep't, 513 F. Supp. 134, 147 (N.D. Tex.
1981)). See Hunter, et al., Government Employees 46 n. 38-39). See also
Esseks, at 9 (``a gay man was denied a non-officer job in a police
department because of Texas's sodomy law'').
City of Dallas v. England
(local--city/police officers)
``The Texas Court of Appeals reversed course in 1993, however, by
ruling that Dallas could not prevent lesbians and gay men from serving
as police officers based solely on disapproval of their private,
consensual sexual activities.'' Hunter, et al., Government Employees 41
(citing City of Dallas v. England, 846 S.W.2d 957, 959 (Tex. Ct. App.
1993)). See Hunter, et al., Government Employees 46 n. 40.
Van Ooteghem v. Gray
(local--county/employee)
``In 1980, a county employee in Texas was fired when he told his
boss that he was gay and planned on speaking to the county commissioner
about gay and lesbian civil rights. The Federal appeals court reviewing
his case required that he be rehired because the county violated his
First Amendment rights.'' Hunter, et al., Government Employees 42
(citing Van Ooteghem v. Gray, 628 F.2d 488, 490 (5th Cir. 1980), aff'd
en banc, 654 F.2d 304 (1981)). See Hunter, et al., Government Employees
46 n. 45.
UTAH
Weaver v. Nebo School District
(local--school district/teacher-coach)
``Also in 1998, a Federal court in Utah vindicated the rights of
Wendy Weaver, a high school teacher who had lost her assignment as
volleyball coach after the school learned that she was a lesbian. In a
sweeping decision, the court held that the school district could not
prevent the teacher from discussing her sexual orientation on the same
terms that heterosexual teachers were permitted to do so. Nor could it
prevent her from being out to students without violating her First
Amendment rights. The court also held that bias against Weaver because
she was a lesbian was not a rational reason to bar her from coaching
the volleyball team.'' Hunter, et al., Government Employees 39-40
(citing Weaver v. Nebo Sch. Dist., 29 F. Supp. 2d 1979 (D. Utah 1998);
see also Miller v. Weaver, 66 P.3d 592 (Utah 2003) (rejecting attempt
by citizens groups to force State board of education to fire Weaver)).
See Hunter, et al., Government Employees 45 n. 27.
Citizens of Nebo School District v. Weaver
``In the latest chapter of an ongoing attempt to fire Wendy Weaver,
a 23-year veteran teacher at Spanish Fork High School, because she is a
lesbian, a group of parents is asking the State Supreme Court to strip
the teacher of her teaching license. The parents claim that she should
not be allowed to teach their children because she is a criminal for
violating the State sodomy law. In 1998, the Nebo County School
District barred Weaver from coaching a girls' volleyball team and
required her to sign an order that prohibited her from discussing her
sexual orientation in or outside of the classroom. With the ACLU's
help, Weaver won a Federal court decision that said government
employees cannot be singled out for disciplinary action because of
their sexual orientation and that the prohibition on Weaver's ability
to be out violated her free speech rights. Following the Federal court
victory, the group of parents, Citizens of the Nebo School District for
Morals and Legal Values, tried to get Weaver fired with a new case,
this time in State court. In 1999, a State trial court judge threw out
the key claims alleged by the group against Weaver, and the parents
appealed to the Utah Supreme Court. The ACLU of Utah represents Weaver,
claiming that the parents' lawsuit, if successful, would violate
Weaver's free speech rights as well as her right to equal protection.
Former ACLU of Utah Legal Director Stephen Clark will argue the case in
October 2002. Cooperating attorney Richard Van Wagoner is assisting the
ACLU of Utah with the case.'' ACLU, Annual Update 2003, at 59-60.
``After legal battle that dragged on for 5 years, the Supreme Court
of Utah unanimously upheld the dismissal of a parents' group's claims
that an openly lesbian teacher was unfit to be a role model and
otherwise participate as a full citizen. The group had filed two
lawsuits seeking to oust teacher Wendy Weaver. In 1998, Weaver was told
by Nebo School District not to discuss her sexual orientation in or
outside the classroom and was barred from teaching girls' volleyball. A
Federal judge found that Weaver couldn't be singled out because of her
sexual orientation and that the school violated her free speech rights.
The parents then sued in State court, and the ACLU represented Weaver
again. In Citizens of Nebo School District v. Weaver, the Supreme Court
of Utah held that remedies already existed for rectifying any teacher
misconduct, and that parents of students had no right to sue the school
to enforce requirements of public employees.'' Docket: Discrimination,
in ACLU, Annual Update 2004, at 39, 46-47.
Etsitty v. Utah Transit Authority
(State--transit authority/bus driver)
``The ACLU of Utah and the Project filed a friend-of-the-court
brief in Federal appeals court on behalf of Krystal Etsitty, a former
Utah Transit Authority bus driver who was fired shortly after she
revealed to her employers that she is transgender. Her employers had
received no complaints about her, yet they informed her that she was
being fired because they could not determine which restroom she should
use while on the job. Etsitty, who identifies and lives as a woman, has
legally changed her name from Michael to Krystal, and has changed her
Utah driver's license designation from male to female. The transit
authority told her that she would be eligible for rehire only after
undergoing sex reassignment surgery. Etsitty's lawyers argued in
Federal court that she was protected by Title VII of the Civil Rights
Act of 1964, which prohibits employment discrimination based on sex,
including nonconformity to sex stereotypes. The trial court ruled
against her, finding that titleVIl did not protect transgender
individuals from discrimination. Etsitty v. Utah Transit Authority is
still pending in the Federal appeals court.'' Transgender Docket, in
ACLU, Annual Update 2007, at 52, 54.
WASHINGTON
Gaylord v. Tacoma Sch. District No. 10
(local--school district/teacher)
``[T]he Supreme Court of Washington allowed a `known homosexual' to
be fired from his teaching position at a high school in Tacoma in
1977.'' Hunter, et al., Government Employees 39 (citing Gaylord v.
Tacoma Sch. Dist. No. 10, 559 P.2d 1340 (Wash. 1977) (en banc). See
Hunter, et al., Government Employees 45 n. 22. See also Esseks, at 9
(``a teacher in Washington State was fired because the State's criminal
intimacy law made him `immoral' and therefore unemployable'').
Davis v. Pullman Memorial Hospital
(State--public hospital/sonographer)
``Mary Jo Davis experienced constant harassment during her job as a
sonographer at Pullman Memorial Hospital, a public institution. Her
boss, Dr. Charles Guess, regularly referred to Davis as a ``fucking
dyke'' and a ``fucking faggot.'' At one point, Guess told another
doctor, ``I don't think that fucking faggot should be doing vaginal
exams, and I'm not working with her.'' When Davis complained, the
hospital punished her rather than discipline Guess. They reduced her
work hours to three quarters time so Guess would not have to work with
her. Later, Davis was fired. The ACLU got involved in the lawsuit
against the hospital and Dr. Guess in 1996. The lower court dismissed
the case, but a Washington State appeals court unanimously ruled that
anti-gay discrimination against a public employee violates the U.S.
Constitution. The homophobic doctor is appealing the case to the State
supreme court, but the hospital has not yet said whether or not it will
join the appeal. Project attorney Ken Choe and cooperating attorney
Richard Reed are handling the case.'' ACLU, Annual Update 2003, at 61.
``The Project secured a hefty settlement for Mary Jo Davis, a
former sonographer at Pullman Memorial Hospital in Pullman, Washington,
who was fired because she is gay. Davis worked in the radiology
department at the hospital for about 2 years, during which time she was
routinely harassed by Dr. Charles Guess, the chief radiologist. Guess
constantly referred to Davis as a ``fucking dyke'' and ``fucking
faggot,'' and told another doctor, ``I don't think that fucking faggot
should be doing vaginal exams, and I'm not working with her.'' When
Davis complained, Guess told hospital administrators that he didn't
``agree with Mary Jo Davis's lesbian lifestyle.'' Rather than
discipline Guess, the hospital punished Davis, reducing her work hours
to three-quarters time so Guess wouldn't have to work with her.
Finally, Davis was fired. After a loss in the trial court, the Project
successfully appealed the case to the Washington Court of Appeals,
helping to establish important law protecting lesbian and gay
government employees from anti-gay discrimination. This was the first
time that an appeals court interpreted the U.S. Constitution to protect
government employees against anti-gay discrimination. Davis v. Pullman
Memorial Hospital, which began in 1996, was finally settled this year
with both the hospital and Dr. Guess agreeing to pay $75,000 in damages
to Davis.'' Docket: Discrimination, in ACLU, Annual Update 2004, at 39,
39-40.
WISCONSIN
Safransky v. State Personnel Board
(State--State-run home/``houseparent'')
``[T]he Wisconsin Supreme Court allowed the administrators of a
State-run home for mentally retarded boys to fire a gay man who had
served as houseparent, on the ground that he failed to project `the
orthodoxy of male heterosexuality.' '' Hunter, et al., Government
Employees 39 (citing Safransky v. State Pers. Bd., 215 N.W.2d 379, 385
(Wis. 1974)). See Hunter, et al., Government Employees 45 n. 23.
______
BMC Software Inc.,
July 20, 2009.
Hon. Edward Kennedy, Chairman,
Senate Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC 20510.
Dear Senator Kennedy: As one of America's leading businesses, BMC
SOFTWARE Inc. would like to express our strong support of Federal
workplace non-discrimination legislation that would extend basic job
protections to lesbian, gay, bisexual and transgender (LGBT) Americans.
BMC SOFTWARE has implemented its own non-discrimination policy to
make our workplace values of fairness clear and transparent to our
5,800 employees. In the years since its implementation, the policy has
been accepted broadly, and we believe it has affected our bottom line
for the better. And it has further re-inforced for all of our employees
that fairness and non-discrimination remain fundamental in our
workplace.
Enhancing our work environment to prohibit discrimination on the
basis of sexual orientation and gender identity has not added any
financial cost to our organization. Instead, we believe our philosophy
and practice of valuing diversity bring financial benefits to the
workplace by encouraging full and open participation by all employees.
Businesses that drive away talented and capable employees are
certain to lose their competitive edge, an outcome that we must not
accept in this competitive global marketplace. That's why a majority of
FORTUNE 500 companies have already addressed these issues. After a
thorough analysis of its provisions, we are convinced that the
Employment Non-Discrimination Act is an appropriate measure that will
have a positive impact on our country's ability to compete by extending
protection in the majority of U.S. States where it remains legal to
fire employees because they are LGBT.
In fact, the fairness and simplicity of this bill is one of its
most compelling features. The bill does not mandate affirmative action
or reporting requirements, and imposes no regulation. It does not
compel employers to grant spousal benefits. The Employment Non-
Discrimination Act merely embodies the principle of non-discrimination
that already enjoys the wide support of the American people.
It has been the law of the land that employment discrimination is
unacceptable based on race, gender, religion, ethnic origin or other
non-performance-related considerations. It is time to include sexual
orientation and gender identity.
BMC SOFTWARE strongly supports passage of the Employment Non-
Discrimination Act. The principles it fosters are consistent with our
corporate principles in treating all employees with fairness and
respect. We encourage Congress to move quickly to enact this important
legislation.
Sincerely,
Robert E. Beauchamp,
CEO and Chairman of the Board.
Business Coalition on Workplace Fairness,
November 5, 2009.
Hon. Tom Harkin, Chairman,
Senate Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC 20510.
Hon. George Miller, Chairman,
House Committee on Education and Labor,
2181 Rayburn House Office Building,
Washington, DC 20515.
Dear Chairman Harkin and Chairman Miller: As members of the
Business Coalition for Workplace Fairness, we represent America's
leading businesses that have already adopted non-discrimination
policies to protect our gay, lesbian, bisexual and transgender
employees. We firmly believe that protecting employees from
discrimination on the basis of sexual orientation and gender identity
is consistent with good business practice regarding treatment of
employees, clients, stakeholders, and the general public. For this
reason, we wish to express our strong support for the Employment Non-
Discrimination Act (S. 1584/H.R. 3017).
To make our workplace values clear and transparent to our
employees, customers and investors, each of our businesses have already
implemented a non-discrimination policy which is inclusive of sexual
orientation and gender identity. This policy has been accepted broadly
and we believe it has positively affected our bottom-line. Our
philosophy and practice of valuing diversity encourages full and open
participation by all employees. By treating all employees with fairness
and respect we have been able to recruit and retain the best and
brightest workers, thereby bringing a multitude of diverse opinions and
perspectives to our organizations.
Federal non-discrimination protections for lesbian, gay, bisexual
and transgender workers will benefit American business. Businesses that
drive away talented and capable employees are certain to lose their
competitive edge. Excluding any one of our Nation's employees from the
basic right to work in a safe and welcoming environment will, in the
end, impede our Nation's ability to compete in a global marketplace.
Thank you for this opportunity to share our views with you.
Sincerely,
Accenture Ltd., New York, NY; Alberto-Culver Co., Melrose
Park, IL; Ameriprise Financial Inc., Minneapolis, MN; Amgen
Inc., Thousand Oaks, CA; AMR Corp. (American Airlines),
Fort Worth, TX; Bank of America Corp., Charlotte, NC; The
Bank of New York Mellon Corp., New York, NY; BASF Corp.,
Florham Park, NJ; Bausch & Lomb Inc., Rochester, NY; Best
Buy Co. Inc., Richfield, MN; Bingham McCutchen LLP, Boston,
MA; BMC Software Inc., Houston, TX; Boehringer Ingelheim
Pharmaceuticals Inc., Ridgefield, CT; BP America Inc.,
Warrenville, IL; Bristol-Myers Squibb Co., New York, NY;
Capital One Financial Corp., McLean, VA; Charles Schwab &
Co., San Francisco, CA; Chevron Corp., San Ramon, CA; Chubb
Corp., Warren, NJ; Cisco Systems Inc., San Jose, CA;
Citigroup, New York, NY; Clear Channel Communications Inc.,
San Antonio, TX; Clorox Co., Oakland, CA; The Coca-Cola
Co., Atlanta, GA; Corning Inc., Corning, NY; Dell Inc.,
Round Rock, TX; Deloitte LLP, New York, NY; Deutsche Bank,
New York, NY; Diageo North America, Norwalk, CT; Dow
Chemical Co., Midland, MI; Eastman Kodak Co., Rochester,
NY; Electronic Arts Inc., Redwood City, CA; Eli Lilly &
Co., Indianapolis, IN; EMC Corp., Hopkinton, MA; Ernst &
Young LLP, New York, NY; Gap Inc., San Francisco, CA;
General Mills Inc., Minneapolis, MN; General Motors Corp.,
Detroit, MI; GlaxoSmithKline, Philadelphia, PA; Goldman
Sachs Group Inc., New York, NY; Google Inc., Mountain View,
CA; Hanover Direct Inc., Weehawken, NJ; Harrah's
Entertainment Inc., Las Vegas, NV; Herman Miller Inc.,
Zeeland, MI; Hewlett-Packard Co., Palo Alto, CA; Hospira
Inc., Lake Forest, IL; HSBC--North America, Prospect
Heights, IL; Integrity Staffing Solutions Inc., Wilmington,
DE; International Business Machines Corp., Armonk, NY; J.P.
Morgan Chase & Co., New York, NY; Kaiser Permanente,
Oakland, CA; KeyCorp, Cleveland, OH; Kimpton Hotel &
Restaurant Group, San Francisco, CA; KPMG LLP, New York,
NY; Levi Strauss & Co., San Francisco, CA; Marriott
International Inc., Bethesda, MD; Merck & Co. Inc.,
Whitehouse Station, NJ; Merrill Lynch & Co. Inc., New York,
NY; Microsoft Corp., Redmond, WA; MillerCoors Brewing Co.,
Chicago, IL; Morgan Stanley, New York, NY; Motorola Inc.,
Schaumburg, IL; Nationwide, Columbus, OH; NCR Corp.,
Dayton, OH; The Nielsen Co., Schaumburg, IL; Nike Inc.,
Beaverton, OR; Pfizer Inc., New York, NY;
PricewaterhouseCoopers LLP, NewYork, NY; QUALCOMM Inc., San
Diego, CA; RBC Dain Rauscher Inc., Minneapolis, MN;
Replacements Ltd., McLeansville, NC; Robins, Kaplan, Miller
& Ciresi LLP, Minneapolis, MN; Sun Microsystems Inc., Santa
Clara, CA; SUPERVALU Inc., Eden Prairie, MN; Teachers
Insurance and Annuity Association--College Retirement
Equities Fund, New York, NY; Texas Instruments Inc.,
Dallas, TX; Time Warner Inc., New York, NY; Travelers
Companies Inc., St. Paul, MN; Xerox Corp., Stamford, CT;
and Yahoo! Inc., Sunnyvale, CA.
______
Center for American Progress Action Fund,
Washington, DC 20005,
November 2, 2009.
Hon. Tom Harkin, Chairman,
Committee on Health, Education, Labor, and Pensions,
731 Hart Senate Office Building,
Washington, DC 20510.
Hon. Michael B. Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
379A Russell Senate Office Building,
Washington, DC 20510.
Re: Employment Non-Discrimination Act of 2009, S. 1584
Dear Chairman Harkin and Ranking Member Enzi: On behalf of the
Center for American Progress Action Fund, I write to express strong
support for S. 1584, the ``Employment Non-Discrimination Act of 2009''
(ENDA). ENDA will provide important and needed protections against
workplace discrimination based on a person's real or perceived sexual
orientation or gender identity. For too long, members of our Nation's
workforce have lived with the fear that their sexual orientation or
gender identity, rather than their job performance, would decide their
employment fate. ENDA will significantly ease these fears and also
provide a strong legal remedy to any such instances of employment
discrimination.
A person's job is critical to his or her well-being. Most Americans
rely on their jobs to support themselves and their families, and to
access healthcare coverage and other benefits. Further, people make
large psychic investments in their jobs and workplaces and many spend
most of their days working. It is important that people not live a
large part of their lives in constant fear of being fired or harassed
or not being promoted or hired simply because of their real or
perceived sexual orientation or gender identity. ENDA will put
employers on notice that such behavior will not be tolerated and could
come with financial costs if they do not treat all employees fairly.
Data and experience show that ENDA is needed. For example, Lambda
Legal reports that most calls to its Help Desk are related to
employment discrimination, receiving about 1,000 calls each year from
2004 to 2007 about instances of sexual orientation or gender identity
workplace bias. The organization also found that in 2005, 39 percent of
lesbians and gay men reported some form of workplace harassment or
discrimination in the previous 5 years. Other research shows that
transgender workers likely face even higher instances of
discrimination.
Given that people are likely to not report cases of sexual
orientation or gender identity discrimination or harassment (for fear
of ``outing'' themselves), we can say with confidence that this problem
impacts many thousands of Americans and disrupts countless lives each
year. Congress should act expeditiously to pass ENDA and help stop
these disruptive, unfair, and detrimental practices.
We note that State governments have made rapid progress in
providing sexual orientation and gender identity employment protections
to workers in their States. Currently, 21 States offer sexual
orientation protections and 12 cover gender identity discrimination,
respectively covering 44 percent and 29 percent of the U.S. population.
These numbers are up drastically from just 10 years ago, when only 24
percent of the population was covered under sexual orientation laws and
2 percent under gender identity laws. Although we applaud this
progress, most of the States currently lacking these laws are not
likely to pass them anytime soon. It is up to the U.S. Congress to put
all workers on equal footing.
Many of the Nation's leading corporations understand the importance
of these non-discrimination policies, not just because they are the
right thing to do, but because they also make good business sense,
ensuring a more stable and productive workforce. The Human Rights
Campaign, for example, reports that 423 of Fortune 500 companies (85
percent) have non-discrimination policies that include sexual
orientation, while 175 (35 percent) include gender identity protection.
Beyond the specific legal remedies that ENDA will provide workers
who have been wrongly discriminated against, Congress's support of this
bill will send a strong signal that in American workplaces, people are
judged based on their skills, abilities, and accomplishments. Treating
all workers fairly regardless of their real or perceived sexual
orientation or gender identity is key to making sure this important
value is upheld and put into practice.
Given high rates of sexual orientation and gender identity
harassment and discrimination in American workplaces, and the patchwork
nature of existing State laws, I strongly urge you to support the
Employment Non-Discrimination Act of 2009. Please contact me if I can
be of assistance as you consider this legislation.
Respectfully,
Winnie Stachelberg,
Senior Vice President for External Affairs.
______
The Commonwealth Of Massachusetts,
Office Of The Attorney General,
Boston, Massachusetts 02108,
November 9, 2009.
Hon. Tom Harkin, Chairman,
Committee on Health, Education, Labor, and Pensions,
428 Senate Dirksen Office Building,
Washington, DC 20510.
Hon. Michael B. Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
379A Senate Russell Office Building,
Washington, DC 20510.
Re: S. 1584, The Employment Non-Discrimination Act of 2009
Dear Chairman Harkin and Senator Enzi: I am writing to you to state
my strong support for Senate 1584, the Employment Non-Discrimination
Act of 2009 (``ENDA''). This legislation expands the protections
granted under Federal civil rights laws to ensure that workplace
discrimination on the basis of sexual orientation and gender identity
is expressly and uniformly prohibited nationwide. The amendments to our
Federal antidiscrimination laws contemplated by ENDA represent great
strides forward in our prevention of discrimination and violence faced
by vulnerable members of our population.
Our workforce is stronger when every person may work and contribute
without being discriminated against, harassed, threatened or assaulted.
The protections that are expanded under ENDA are intended to ensure
that workplaces are safe, productive environments where all individuals
may work and earn a living, free from fear of mistreatment on the basis
of characteristics unique to them.
Moreover, the expansion of employment antidiscrimination
protections benefits not only workers who fall into the proposed
protected classes, but also their co-workers and their employers. More
than 150 Fortune 500 companies nationwide realize this and have adopted
policies protecting their workers from discrimination on the basis of
sexual orientation or gender identity. The reason: it just makes good
business sense. Companies with expansive antidiscrimination policies
are in a position to attract and retain the most qualified people; save
money on retraining; and motivate their workforces to maximize
productivity. When discrimination is taken off the table as a barrier
to success, workers and companies are in a better position to thrive.
As Massachusetts' Attorney General, I am committed to protecting
the civil rights of all individuals who live in, work in and visit our
Commonwealth. I am proud that Massachusetts is one of 13 States and the
District of Columbia to protect individuals on the basis of sexual
orientation. In addition, the Massachusetts Legislature is currently
contemplating the addition of gender identity as a protected class
within our antidiscrimination and hate crime laws. However, waiting for
States to amend their laws means only a patchwork of protection is
available. Individuals who face discrimination and harassment on the
basis of sexual orientation and gender identity deserve more than
piecemeal protections. The Employment Non-Discrimination Act of 2009
has the potential to improve the lives of individuals in every State,
and I hope that it is passed. Thank you for the opportunity to submit
these comments. Please do not hesitate to contact me with any questions
or to discuss this matter further.
Cordially,
Martha Coakley,
Massachusetts Attorney General.
______
Export-Import Bank of the United States,
August 5, 2009.
Hon. Jeff Merkley,
107 Russell Senate Office Building,
Washington, DC 20510.
Dear Senator Merkley: I am pleased to inform you that during the
month of May and June, the Export-Import Bank of the United States (Ex-
Im Bank) supported 10 companies with total exports of $9,388,160.00 in
your State. The attached list provides details of Ex-Im's financing.
In these difficult economic times, our job at Ex-Irn is to help
sustain and increase U.S. jobs--these exports do exactly that. We are
committed to working with U.S. exporters and ensuring that they have
the necessary financing to help our economy grow.
At any time we can be of help please feel free to call me at (202)
565-3500.
Thank you for your strong work on ENDA.
Sincerely,
Fred P. Hochberg.
Companies Receiving Ex-Im Bank Support in May/June 2009
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Oregro Seeds, Inc...................... Albany.................... $239,816.00 Small Business
Stahlbush Island Farms, Inc............ Corvallis................. $30,000.00 Small Business
Advanced Relay Corp.................... Eugene.................... $33,870.00 Small Business
Superior Tape & Label, Inc............. Gresham................... $36,284.00 Small Business
Phoseon Technology, Inc................ Hillsboro................. $3,000,000.00
Meco Environmental, LLC................ Portland.................. $5,000,000.00
Rogers Machinery Company, Inc.......... Portland.................. $190,813.00
Turf Merchants, Inc.................... Tangent................... $333,697.00 Small Business
Wadeco, Inc............................ Tualatin.................. $78,409.00 Small Business
Warm Springs Composite Product......... Warm Springs.............. $445,271.00 Small Business
----------------------------------------------------------------------------------------------------------------
______
Gay & Lesbian Advocates & Defenders (GLAD),
Boston, MA,
November 2, 2009.
Hon. Tom Harkin, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
731 Hart Senate Office Building,
Washington, DC 20510.
Hon. Mike Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
379A Senate Russell Office Building,
Washington, DC 20510.
Dear Chairman Harkin and Ranking Member Enzi: I am the Executive
Director of Gay & Lesbian Advocates & Defenders (GLAD). GLAD is New
England's leading legal rights organization dedicated to ending
discrimination on the basis of sexual orientation, HIV status, and
gender identity and expression. Since 1978, GLAD has engaged in legal
advocacy representing individuals throughout the six New England States
who have faced discrimination in a broad range of contexts including in
State and private employment. GLAD's geographic focus includes
Massachusetts, Connecticut, Rhode Island, Maine, Vermont, and New
Hampshire.
As part of the organization's public education efforts, GLAD also
staffs a legal information helpline to provide information and legal
referrals to persons facing discrimination. Since 1995, GLAD has
received nearly 16,000 inquiries reflecting some matter of lesbian,
gay, bisexual, or transgender concern. Of those calls, between 10
percent-11 percent focused on some employment-related matter.
Both through our public presence as the longest established legal
advocacy organization in our region and through the legal information
helpline, GLAD has received scores of reports of discrimination faced
by public employees in the workplace. The data received by GLAD through
the legal helpline and other mechanisms demonstrates a widespread
pattern of unconstitutional employment discrimination against lesbian,
gay, bisexual and transgender employees.
As the committee members are well aware, discrimination against
State employees on the basis of their sexual orientation and gender
identity violates guarantees of Equal Protection and Due Process and
can also, depending on the facts, violate an employee's expressive
rights protected by the First Amendment. Neither an employee's sexual
orientation nor his/her gender identity or expression bears any
relationship to a person's ability to do the job. Therefore, an
employer's reliance on these characteristics to make any job-related
decisions must not be based on rational decisionmaking.
GLAD supports the passage of the Employment Non-Discrimination Act
that would add the categories of sexual orientation and gender identity
to our Nation's employment antidiscrimination laws. Moreover, based on
the reported incidents of discrimination, GLAD strenuously believes
that the law must extend to State employees and can do so
constitutionally given the widespread and pervasive discrimination that
has existed historically and that yet currently exists.
Since 2000, GLAD has received over 50 reports of employment
discrimination by State employees. This number is particularly notable
given that the States where these reported incidents occurred already
have statewide non-discrimination protections for sexual orientation.
Only 3 of those States currently have protections against
discrimination on the basis of gender identity (Vermont, Rhode Island,
and Maine). I have attached a compilation of these reported incidents
that provides detailed, alleged facts about the reported incidents as
well as the State and government agency that employed the individual.
The complaints of discrimination received by GLAD vary in type but
range from outright adverse employment decisions because of an
employee's sexual orientation or gender identity to harassment by
supervisors to harassment by co-workers which many times remains
unaddressed by superiors despite multiple incidents of reporting by the
victim.
The following reflects a small sample of the calls we have
received. A caller reported that she was one of seven lesbians
terminated by a State social service agency. Another reported that she
was one of two lesbian public school teachers whose contract was not
renewed because of the principal's difference with her (and the other
teacher's) ``philosophies.'' In one case that received a fair bit of
public attention, GLAD represented a transgender police officer in
Vermont who was run off the force by supervisors and coworkers after
they learned (from an intense search) that he was transgender. On
several occasions, he was given faulty equipment, inaccurate
directions, and denied training opportunities without explanation. The
officer had been a highly decorated police officer in another State
before moving to Vermont and joining a local police force. He was
eventually told by the town's former police chief that the reason for
the discriminatory treatment was the fact of his being transgender.
I have no doubt that this compilation represents just a fraction of
the incidents of discrimination that State employees face in the six
New England States in which GLAD focuses its advocacy. This
underreporting exists for numerous reasons including the risks that
employees take in bringing a complaint which would necessarily disclose
the person's sexual orientation and/or gender identity to an even
broader range of co-workers and decisionmakers. In addition, even when
employees are willing to expose themselves to such risk, they often
face hostile or uninformed State agencies and courts.
For example, an openly gay staff member at a Massachusetts State
agency was repeatedly harassed by one of his co-workers. The co-worker
posted and distributed anti-gay news articles and made anti-gay remarks
in front of the gay employee. The gay staff member complained to his
supervisor about the harassment. The supervisor took no steps to
address the offending conduct. In a similar type of case, a gay janitor
in a Massachusetts public school district faced severe and repeated
harassment including a physical assault that was captured on videotape.
Despite complaints filed by the employee, the school district took no
steps to terminate the harassment. In yet another case, a gay public
school teacher reported multiple incidents of harassment, including
being called ``faggot,'' and having his e-mail address posted to lewd
Web sites, to school administrators. Shortly after reporting the
harassment, the school superintendent told the teacher that his
position was being restructured and he was being terminated.
The absence of explicit Federal protections and remedies seriously
impacts the willingness of employees to pursue available remedies and
results in widespread underreporting of incidents of workplace
discrimination.
For all of the reasons stated above, GLAD urges support and passage
of ENDA. The need for explicit protections for lesbian, gay, bisexual,
and transgender employees under Federal law is great, particularly in
these challenging economic times. Based on the calls and contacts GLAD
receives, it is apparent that employment discrimination is widespread
and rampant and needs to be addressed by clear statutory prohibitions
and remedies to ensure appropriate enforcement,
Sincerely,
Lee Swislow,
Executive Director.
Calls to GLAD Regarding Cases of Public Employment Discrimination
----------------------------------------------------------------------------------------------------------------
State or Local
State Government Employer Year Occupation Summary
Employer?
----------------------------------------------------------------------------------------------------------------
CT............................ Local............ Public School.... 2009 Teacher......... A Connecticut
public school
teacher with
excellent
evaluations was
dismissed
shortly after
mentioning in
class when
Connecticut
began to allow
same-sex
couples to
marry that
Spain also
allowed this.
Although the
school said the
dismissal was
based on poor
performance,
the teacher
felt it was
sexual
orientation
discrimination.
The teacher
filed a
complaint with
the Connecticut
Commission of
Human Rights &
Opportunities.
CT............................ State............ State of 2008 Staff........... The employee has
Connecticut. worked for the
State of
Connecticut for
just over 1
year. During
this time, the
employee
reports having
experienced
discrimination
and harassment
based upon
sexual
orientation.
The employee
filed a
complaint, and
based upon the
investigation,
the State of
Connecticut
Department of
Developmental
Services Equal
Employment
Opportunity
Division has
found
sufficient
evidence of
harassment and
discrimination
to move
forward.
CT............................ Local............ School District.. 2008 Teacher......... A gay teacher in
the Connecticut
public schools
was one of
three gay
teachers to be
``treated
badly'' by her
coworkers. She
was singled out
through
selective
enforcement of
rules, such as
taking down
decorations in
her classroom.
The principal
of the school
told the
teacher that
she would only
provide her
with a letter
of
recommendation
if she
resigned.
CT............................ Local............ Hartford Police 2003 Police Officer.. A transgender
Department. woman, working
as a police
officer in
Hartford,
suffered
harassment as a
result of her
gender
identity. She
was denied
career
advancement,
despite being
qualified. She
approached her
chief regarding
the situation,
but was
``brushed
off.''
CT............................ State............ Connecticut State 2008 Staff........... A gay man,
Maintenance working in the
Department. Connecticut
State
Maintenance
Department, was
harassed by his
coworkers for
being gay. He
was tied by his
hands and feet
and locked in a
closet. He
filed a
complaint, and
the department
is looking into
this incident
as a hate
crime. His
assaulters were
placed on
administrative
leave.
CT............................ State............ Police Training 2008 Staff........... A transgender
Academy. woman working
for a
Connecticut
Police Training
Academy was
interrogated by
her supervisor.
He called her
into a dorm
room, laid down
on a bed, and
then asked her
personal
questions about
her family,
their approval,
and what she
does in her
free time. This
lasted for more
than 2 hours.
At a later
date, her
supervisor
cited her for
taking too long
to change
ceiling tiles
and stripping
the floors,
despite having
accomplished
the task and
receiving
praise from
others for
doing a good
job. She was
also instructed
to use the
men's restroom.
She filed a
complaint, in
which she
disclosed her
status as
transgender.
She noted that
she felt afraid
to be alone
with her
supervisor.
After
submitting this
complaint, she
was fired.
CT............................ State............ Connecticut State 2008 Staff........... While working
Department of for 16 years in
Developmental the State of
Disabilities. Connecticut
Department of
Developmental
Disabilities, a
gay man
reported
several
incidents of
harassment and
discrimination
based upon his
sexual
orientation. In
1996, he was
given a
promotion. Upon
telling his new
Program
Supervisor that
he was gay, he
was immediately
notified that
the promotion
was going to be
given to
another staff
person instead.
The same day as
placing a
rainbow sticker
on his car, the
employee
overheard many
inappropriate
comments about
his sexual
orientation,
such as ``They
put those on
their cars so
they can spot
each other to
have sex.'' In
2007, the
employee was
promoted and
moved to a new
group home. As
part of his job
responsibilitie
s, the employee
was asked to
shave a total
care client.
However, he was
told that it
was
inappropriate
for him to
shave another
male client
because he was
gay, and that
if he were to
do that, he
would be turned
in for abuse.
Other staff
members, who
are
heterosexual,
were not
prohibited from
shaving clients
of a different-
sex. The
employee feels
``totally
isolated and
helpless'' and
is having
trouble
sleeping as a
result of this
work
environment.
His attempts to
work with
supervisors and
human resource
personnel have
resulted in no
difference in
climate, and I
was told to
``keep my
personal
business to
myself.''
MA............................ Local............ Public School.... 2007 Teacher......... A public school
teacher
reported
homophobic
graffiti and
harassment to
her supervisor
and then was
harassed and
terminated by
the supervisor.
MA............................ Local............ Public School.... 2009 Teacher......... A public school
teacher has
been suspended
four times
since 2003, and
she feels that
the reason is
that she is the
only out
teacher in the
district.
MA............................ State............ State University. 2009 Staff........... A worker who has
worked at a
State
university for
26 years has
been isolated
from his fellow
workers and he
feels that his
requests to
remedy this
have not been
addressed
because he is
gay.
MA............................ State............ State University. 2008 Professor....... A mathematics
professor at a
Massachusetts
State
university
reported that
he and his
husband, also a
mathematics
professor, were
discriminated
against based
upon their
sexual
orientation.
Both the caller
and his spouse
were chosen to
serve on a
search
committee for a
new faculty
member. They
were notified,
however, that
one of them
would need to
step down
because there
was a
university
policy that
family members
could not serve
together on a
search
committee. The
caller was not
able to find
any such
policy, and he
believes that
he and his
husband are
being
discriminated
against based
upon their
sexual
orientation.
MA............................ State............ State Trial Court 2008 Staff........... A married
lesbian working
for the
Massachusetts
State Trial
Court reported
that she was
demoted and her
pay was cut as
a result of her
recent marriage
to a woman. The
employee took
time off of
work for an
illness with a
doctor's note,
but she was
called by her
union steward
to notify her
that she had
been suspended
and that
proceedings
were under way
to fire her.
MA............................ State............ Massachusetts 2007 Staff........... A lesbian staff
Department of member with the
Transitional Massachusetts
Assistance. Department of
Transitional
Assistance has
four times
applied for a
promotion and
four times been
denied, despite
having obtained
additional
training. The
employee has
also received
good
evaluations and
received the
Governor's
Award for
Outstanding
Performance.
She believes
that she has
been denied
advancement due
to her sexual
orientation.
Another
employee is
currently suing
the department
for
discrimination
based upon
sexual
orientation as
well. The
employee has
filed paperwork
to start the
complaint
process.
MA............................ State............ Massachusetts 2004 Staff........... An openly gay
Department of staff member at
Revenue. the
Massachusetts
Department of
Revenue was
harassed by one
of his co-
workers. This
co-worker
posted and
distributed
anti-gay news
articles and
made anti-gay
remarks. The
gay staff
member
complained to
his supervisor
about the
harassment, but
his supervisor
has taken no
steps to stop
the harassment.
MA............................ State............ Massachusetts 2003 Direct Care A lesbian direct
Department of Worker. care worker for
Social Services. the
Massachusetts
Department of
Social Services
reported that
she was one of
seven lesbians
fired at the
same time. The
employee filed
a complaint
with the
Massachusetts
Commission
Against
Discrimination.
MA............................ Local............ School District.. 2003 Janitor......... A gay janitor in
a Massachusetts
public school
district
experienced
regular
harassment by
his coworkers.
He reported
that his
coworkers drank
on the job and
then threatened
him physically.
One coworker
pushed him.
This incident
was caught on
video, but the
school district
now claims that
they can't
locate the
tape. Another
coworker called
the janitor a
``faggot.'' He
has started
having panic
attacks as a
result of the
harassment and
is currently on
leave from
work. He filed
a complaint
with the school
district and
his union, but
neither have
taken steps to
stop the
harassment.
MA............................ Local............ School District.. 2003 Teacher......... A gay teacher
working in a
Massachusetts
public school
was forced to
resign because
of his sexual
orientation. He
was the target
of several anti-
gay remarks and
vandalism.
Someone keyed
``Gay Faggot''
into the paint
of his car. The
teacher brought
these incidents
to the
attention of
the school
administration,
which did
nothing. The
union
representing
the teacher was
also made aware
of these
incidents but
did nothing.
Even after
leaving his
job, the
teacher
continues to
receive
harassing phone
calls.
MA............................ Local............ School District.. 2004 Teacher......... A lesbian
teacher working
in a
Massachusetts
public school
reported that
her contract
was not
renewed. The
other lesbian
teacher working
at the school
also did not
have her
contract
renewed. When
approached, the
principal said
that there were
``differences
in
philosophies''
and
``overarching
differences.''
The teacher
also claimed
that several
teachers had
tried to start
a gay-straight
alliance at the
school and had
wanted to put
up ``safe
zone''
stickers, but
they were told
by the
administration
that they could
not.
MA............................ Local............ School District.. 2004 School A gay school
Psychologist. psychologist
working in a
Massachusetts
public school
reported that
despite
positive
performance
reviews, his
responsibilitie
s were
restricted as a
result of his
being gay. His
office was
moved and he no
longer has any
interactions
with students.
Administrators
at the school
told the
psychologist
that he should
not tell
students he is
gay nor should
he say that he
is married (to
a man). The
principal also
asked everyone
to disclose
their sexual
orientations
during a staff
meeting. His
union
representative
did not take
any action and
advised the
psychologist to
not take any
further steps
to address
these issues.
MA............................ Local............ School District.. 2005 Teacher......... An openly gay
English teacher
reported that
he had been
harassed almost
on a daily
basis by a
group of
students at the
high school
where he
teaches. The
students have
called him
derogatory
names, such as
``faggot,''
left lewd
notes,
drawings, and
pictures on his
desk or
bulletin board,
and signed the
teacher up for
gay
pornographic
Web sites using
his school e-
mail address.
The teacher
complained to
the principal,
who indicated
that she would
``handle it.''
However, after
she had not
addressed these
issues, the
teacher then
sent a letter
to the District
Superintendent.
Shortly
thereafter, the
teacher was
notified that
his position
had been
changed and
that he was
being
terminated. The
Superintendent
told the
teacher that in
exchange for a
signed
agreement to
not continue
with any
harassment
complaints, she
would offer him
3 weeks
severance and
allow him to
collect
unemployment
benefits.
MA............................ Local............ Boston Police 2005 Police Officer.. A Boston police
Department. officer, who is
a lesbian,
overheard and
has been the
target of
harassing
comments and
slurs. After
verbally
complaining to
her supervisors
about these
comments, no
action was
taken.
MA............................ Local............ County Sheriff 2005 Deputy Sheriff.. A Massachusetts
Department. deputy sheriff,
who is gay, has
worked for more
than 13 years
in law
enforcement.
His coworkers
began targeting
him with
``usual locker
room homo
talk.'' He was
then excluded
from meetings
and his
responsibilitie
s were slowly
taken away
until finally,
he was
transferred to
an inferior,
non-supervisory
position. He
was then
terminated. He
also reported
that one other
openly gay
person, a
lesbian, in the
department was
also forced out
after her
sexual
orientation was
disclosed. He
reports that he
was in
settlement
negotiations
with the
Sheriff
Department, but
those have
broken down.
MA............................ Local............ Town............. 2007 Clerk........... A lesbian staff
person working
in a
Massachusetts
town's clerk
office was
fired after she
and her partner
filed a birth
certificate,
listing
themselves as
the parents of
their child.
She was made to
feel
incompetent and
overworked,
which resulted
in her
suffering a
breakdown while
at work. She
was forced to
sign a document
indicating that
she would not
sue the town
upon her
termination.
MA............................ Local............ County Sheriff 2007 Deputy Sheriff.. A Massachusetts
Department. deputy sheriff,
who is gay,
experienced 2
years of
harassment by
his chief. The
chief
threatened to
suspend him if
he continued
``to see two
guys at one
time'' because
it looked bad
for the
department. The
chief also
outted him to
his coworkers.
Due to the
harassment he
suffered, the
deputy sheriff
suffered a mild
heart attack,
and was placed
on sick leave.
During this
time, he was
fired for
abandonment of
post.
MA............................ Local............ City Government.. 2000 Staff........... A lesbian
working for a
city department
for 16 years
was harassed by
one of her
coworkers. He
treated her
differently
than her
coworkers and
made comments,
including ``You
just want to
give me a hard
time; you want
a man; you want
the forbidden
fruit.'' She
filed a
grievance with
her union and
with the
Massachusetts
Commission
Against
Discrimination.
MA............................ Local............ Town............. 2008 Truck Driver.... A Massachusetts
truck driver,
working for a
town,
experienced
harassment
based upon her
being a
lesbian. People
at work
displayed
pornographic
images near her
locker. She
filed suit
against the
town for sexual
orientation
harassment and
won at $2.1
million
lawsuit.
MA............................ Local............ County Sheriff 2005 Nurse........... A gay nurse
Department. working for a
Massachusetts
Sheriff
Department
worked in a
hostile work
environment.
His coworkers
gave him a
Christmas
present, which
included
fishnet
stockings and
obscene gay sex
cards. He was
given a bag of
peanuts by a
coworker and
told to ``Eat
my nuts.'' When
he complained,
he was told
that ``this was
the way prisons
work'' and that
he shouldn't
complain. He
filed a
complaint with
the
Massachusetts
Commission
Against
Discrimination.
MA............................ State............ Massachusetts 2002 Staff........... A 16-year
Highway veteran of the
Department. Massachusetts
Highway
Department was
harassed by his
immediate
supervisor, his
boss, and
several
coworkers. They
asked him
several
questions,
including ``Are
you gay?,''
``Do you swing
both ways?,''
and ``If a girl
strapped on a
dildo, would
that get you
excited?'' He
was offered a
lateral
transfer,
however the
harassment
continued. As a
result of the
harassment, he
was diagnosed
with high blood
pressure. He
feels that he
can't file a
complaint with
the union
because his
steward is one
of the
harassers.
MA............................ State............ Massachusetts 2005 Staff........... While working at
Department of the
Social Services. Massachusetts
Department of
Social
Services, a
transgender man
experienced
discrimination
in his
workplace. He
met with his
superiors and a
civil rights
officer to
assist in his
transition
(from female to
male) while at
work. Despite
discussing a
plan for his
transition,
such as
training
sessions with
fellow
employees and
name changing--
procedures, no
action has been
taken by his
workplace. His
request to
formally change
his name has
been put on
hold, and he
was not invited
to participate
in weekly
meetings.
MA............................ State............ Massachusetts 2003 Tax Auditor..... A gay man, who
Department of has worked for
Revenue. the
Massachusetts
Department of
Revenue for 19
years, reported
that he had
been sexually
harassed at
work. A
supervisor
called him ``a
loser'' and a
``f***ing
faggot'' behind
his back. After
telling
internal
affairs that he
did not wish to
work in the
same space as
this particular
supervisor, he
was asked to
move to another
location. He
filed a formal
complaint with
internal
affairs.
ME............................ State............ University of 2008 Staff........... The employee, a
Maine, Augusta. black gay man,
was called a
``fagball'' and
``niggerball''
by his boss, as
well as
addressed in
other demeaning
ways. The
employee filed
a grievance
with his
supervisor, but
is concerned
that it was not
followed up
upon because
the supervisor
is friendly
with his boss.
ME............................ State............ Maine Department 2007 .............. The employee, a
of Corrections. gay man, has
worked for the
Maine
Department of
Corrections for
7 years. As a
result of
discrimination
and harassment,
the employee is
on medical
leave. The
employee is
currently under
investigation,
but his
supervisors
will not tell
him what the
cause of the
investigations
are. The
employee
reports that
inmates treat
him badly
because of his
perceived
sexual
orientation and
that his
supervisors do
nothing to
address this
harassment. The
employee filed
a complaint
with the Maine
Human Rights
Commission and
was successful
in his case.
ME............................ Local............ Police Department 2002 Police Officer.. A gay man,
working as a
police officer
in Maine, has
been called a
``fudgepacker''
and a
``faggot'' by
his coworkers.
ME............................ Local............ County Recycling. 2007 Staff........... A staff member
at a county
recycling
center was
denied
bereavement
leave when her
partner's
father passed
away. She knows
that other
coworkers,
whose unmarried
partner's
relatives have
passed away,
have been able
to use
bereavement
time. For
example, a
coworker was
permitted to
take
bereavement
leave for the
death of his
girlfriend's
father. The
department
policy states
that in the
case of an
immediate
family member's
death,
including a
spouse's
parent, staff
may take
bereavement
time.
ME............................ Local............ City Government.. 2008 Firefighter..... A Maine city
firefighter,
who is gay, was
harassed by his
coworkers. He
was maliciously
``outted' and
then his
coworkers made
offensive and
hostile
comments. He
has met with
department
heads and
expressed his
discomfort
several times,
but nothing has
changed.
NH............................ Local............ Public School.... 2009 Teacher......... A transgender
public school
teacher who
began to
transition was
fired because
the principal
said that
``things were
not working
out.'' She had
received no
complaints or
warnings prior
to being let
go.
NH............................ Local............ Public School.... 2009 Teacher......... A teacher who
had been at the
school for 19
years was
terminated when
a new
superintendent
and principal
were hired who
said
disparaging
things about
his being gay.
NH............................ Local............ Public School.... 2008 Teacher......... A teacher was
being
considered for
tenure at a
public school.
He had
favorable
reviews and
compliments
from his co-
workers. The
principal said
it wasn't the
``right fit''
and he was
denied tenure.
NH............................ Local............ School District.. 2007 School Nurse.... A lesbian school
nurse at a
public school
in New
Hampshire was
harassed by the
principal at
her school. The
principal asked
several
coworkers about
the nurse and
her partner,
who is a
special
education
teacher at the
school.
Specifically,
the principal
asked about
their sexual
orientation and
the nature of
their
relationship.
The principal
told a coworker
that if they
were lesbians,
they must be
doing something
inappropriate
behind closed
doors. The
principal also
noted that she
didn't
understand why
they ``had to
hire''
lesbians. The
nurse
complained to
her union and
to the human
resource staff
at the school,
but she was
told to ``make
nice.''
NH............................ Local............ County 2007 Corrections A transgender
Corrections Officer. woman worked as
Department. a corrections
officer in New
Hampshire for 3
years. Her
immediate
supervisor
harassed her,
saying ``Your
tits are
growing'' and
``You look gay
when you
walk.'' Other
coworkers then
began
physically
assaulting her
kicking her,
snapping her in
the breasts,
and threatening
to handcuff her
to a flagpole
and take off
her clothes.
One officer
grabbed her and
slammed her
into a concrete
wall while her
coworkers
watched. No one
reported this
event. She was
placed on a
shift with this
officer,
however. She
resigned as a
result of the
harassment she
faced.
NH............................ Unknown.......... Corrections 2002 Staff........... In applying for
Department. a position with
a corrections
department in
New Hampshire,
a woman was
required to
take a
polygraph test.
During the
test, she was
asked twice
about her
marital status,
through which
she disclosed
that she was a
lesbian. She
was then not
hired for the
job.
RI............................ Local............ Public School.... 2002 Teacher......... A science
teacher came
out to his
colleagues and
his principal
began to harass
him. As the
harassment
continued, the
teacher became
more depressed
and anxious and
began to stay
out of school
and then was
fired.
RI............................ State............ Rhode Island 2004 State Trooper... A Rhode Island
State Trooper. State Trooper,
who is a
lesbian,
reported that
she was
harassed and
ultimately
fired because
of her sexual
orientation.
The trooper is
concerned that
if she files a
complaint, she
will not be
able to get
another job in
law enforcement
in the State.
RI............................ Local............ School District.. 2002 Teacher......... A teacher, who
is gay, working
in the Rhode
Island public
school district
reported that
several of his
coworkers made
anti-gay
comments to
him, such as
``What, are you
a homo?''
``Where are
your wife and
kids?'' and
``We can't deal
with this gay
and lesbian
s**t.'' In
response to his
complaints, the
teacher's
classroom and
teaching
schedule was
changed without
notice, he has
been screamed
at, and he was
warned to ``not
get into a
pi**ing match''
with them. The
teacher reports
that he feels
intimidated and
that he is
treated
differently as
well, as that
he has been
passed over for
other work
opportunities
because of his
sexual
orientation.
After filing a
complaint with
his union and
the school
district, union
officials and
the principal
wrote the
teacher up for
insubordination
. The teacher
spoke to
someone in the
Rhode Island
Department of
Education, but
he feared that
if he filed an
official
complaint, the
Department of
Education would
take the
school's side.
RI............................ State............ Department of 2007 Staff........... A gay man
Corrections. working for the
State of Rhode
Island
Department of
Corrections
reports having
problems at
work because of
his sexual
orientation. He
has been called
``gay cop,''
``c**
swallowing
pig,'' and
other
derogatory
names in front
of inmates by
his coworkers.
RI............................ State............ State of Rhode 2003 Staff........... A woman working
Island. for the State
of Rhode Island
overheard a
conversation in
the cafeteria
at work in
which an
employee made
derogatory
comments about
gay people,
such as
``homosexuals
are
pedophiles.''
She complained
to her
supervisor, who
scheduled a
mediation
session.
However, the
person who made
the comment
refused to
participate,
and the matter
was dropped.
She fears
retaliation if
she files
another
complaint.
VT............................ Local............ Public School.... 2008 Teacher......... A public school
teacher who
works with
autistic
children was
harassed and
ultimately
terminated
because he was
gay. He filed a
complaint with
the attorney
general's
office
VT............................ Local............ Public School.... 2008 Teacher......... A teacher came
out to a
colleague and
after this
perceived a
hostile work
environment.
The teacher
tried to get
the union to
intercede on
his behalf, but
the union
refused to.
VT............................ State............ Vermont State 2003 .............. The employee, a
Department of lesbian, works
Corrections. for the Vermont
State
Department of
Corrections. A
coworker used
derogatory
language about
her and another
coworker in
regards to
their sexual
orientation.
The employee
filed a formal
complaint,
however there
has been no
investigation.
VT............................ Local............ Police Department 2002 Police Officer.. A transgender
police officer
working for a
Vermont police
department was
told that the
police chief
was being
pressured to
run him off the
force because
he was
transgender.
----------------------------------------------------------------------------------------------------------------
______
September 25, 2009.
Hon. Jeff Merkley,
U.S. Senate,
107 Russell Senate Office Building,
Washington, DC 20510.
Dear Senator Merkley: Sun Microsystems would like to thank you for
sponsoring S. 1584, the Employment Non-Discrimination Act of 2009
(ENDA). Sun supports this legislation and the belief that all American
workers are entitled to fair employment standards.
At Sun, equality is central to our business philosophy. Our company
was founded on the ideals of openness and sharing and we continue to
promote those ideals 27 years later. As a technology company we are
committed to increase innovation and economic progress; but we are also
committed to furthering social progress worldwide. Our commitment to
equality and fairness is not only reflected in our Equal Employment
Opportunity and Anti-Discrimination and Harassment policies, but also
in our employees. We believe that respect for fellow workers is a key
ingredient to a productive work environment. This year Sun was awarded
a perfect 100 percent, for the 5th year in a row, on the Human Rights
Campaign's Corporate Equality Index, which assesses companies' policies
regarding gay, lesbian, bisexual, and transgender employees.
We support ENDA so that discrimination on the basis of sexual
orientation and/or gender identity will be unacceptable, as
discrimination based on several other non-performance related concerns
is already considered to be.
Thank you for sponsoring this important legislation.
Sincerely,
Christopher G. Hankin,
Senior Director of Federal Affairs.
______
Human Rights Campaign (HRC),
September 23, 2009.
Dear Member of Congress: On behalf of the Human Rights Campaign
(HRC) and our grassroots force of more than 750,000 members and
supporters nationwide, I ask you to support the Employment Non-
Discrimination Act (ENDA). It is simply unacceptable that lesbian, gay,
bisexual and transgender people can still be fired or refused a job
based on characteristics wholly unrelated to job performance. ENDA
would end this injustice against our community and let these
hardworking Americans support their families and be a part of our
national economy without fear of arbitrary discrimination. We hope you
will support this legislation in the 111th Congress.
The American people believe in fairness and understand that
employees should be judged on the merits, not on sexual orientation or
gender identity. A January 2007 Hart Research poll found that 6 out of
10 Americans support Federal legislation to address workplace
discrimination against lesbian, gay, bisexual and transgender people.
Yet today, it remains perfectly legal in 29 States to fire someone
based simply on sexual orientation, and in 38 States to do so based on
gender identity. ENDA would prohibit this discrimination against
lesbian, gay, bisexual and transgender people in most workplaces.
Corporate America supports ENDA's fair-minded approach. Eighty-
seven percent of Fortune 500 companies have included sexual orientation
in their workplace policies and more than 40 percent of them also
prohibit discrimination based on gender identity. ENDA is also
supported by a broad coalition of civil rights, labor, and religious
organizations, including the Leadership Conference on Civil Rights.
We hope you will join us in supporting this historic piece of
legislation. Please feel free to contact Allison Herwitt, Legislative
Director, at (202) 216-1515 or David Stacy, Senior Public Policy
Advocate, at (202) 572-8959 if you have any questions.
Sincerely,
Joe Solmonese,
HRC President.
______
Interfaith Alliance,
November 3, 2009.
Senator Tom Harkin,
731 Hart Senate Office Building,
Washington, DC 20510.
Senator Mike Enzi,
379A Russell Senate Office Building,
Washington, DC 20510.
Cc: Senator Jeff Merkley
Dear Senators Harkin and Enzi: I write to you as the President of
Interfaith Alliance, a national organization that celebrates religious
freedom by championing individual rights, promoting policies that
protect both religion and democracy and uniting diverse voices to
challenge extremism and build common ground. I wish to express my
strong support of the Employment Non-Discrimination Act (ENDA) (H.R.
3017/S. 1584) in anticipation of the hearing your committee will be
holding this week.
Interfaith Alliance's support of ENDA is twofold. First, we believe
a vibrant democracy guarantees the protection of civil rights for
everybody with no exception for sexual orientation or gender identity.
Second, defending the religious freedom of all Americans is of our
utmost concern. It is for these reasons Interfaith Alliance has worked
hard to ensure that ENDA is both fully inclusive and contains a
religious exemption provision to protect religious employers'
constitutional rights.
Despite what opponents may contend, the truth is that ENDA would
not create new or special rights. Modeled after existing laws such as
the Civil Rights Act of 1964 and the Americans with Disabilities Act,
ENDA simply ensures that all Americans can enjoy the rights guaranteed
to them by the Constitution. These rights are also reflected in the
shared values of all of our Nation's diverse faith traditions--values
of compassion, human dignity, fairness and equality. This legislation
will ensure all employees are treated with the respect that is mandated
by the teachings of our faiths and the American values of justice and
equality.
As our Nation continues to face daily challenges that divide the
American public, there is an increasing need to work together on issues
of mutual concern. The Employment Non-Discrimination Act ensures
liberty and it ensures equality. It abides by the values taught by the
diverse faith traditions in this great Nation; and, perhaps most
importantly, it ensures justice by guaranteeing the human dignity due
to all Americans and provided for by the Constitution of the United
States of America. Passage of a fully inclusive ENDA with an
appropriate religious exemption, will be a victory for democracy and
cause for celebration among all who value religious freedom.
Thank you for your consideration.
Sincerely,
Rev. Dr. C. Welton Gaddy,
President.
______
Lambda Legal,
November 5, 2009.
Hon. Tom Harkin, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate.
Hon. Mike Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate.
Re: The Employment Non-Discrimination Act, S. 1584
Dear Chairman Harkin and Ranking Member Enzi: I write on behalf of
Lambda Legal Defense and Education Fund (``Lambda Legal'') and our more
than 32,000 active members to urge you to support S. 1584, the
``Employment Non-Discrimination Act'' (``ENDA''), in order to provide
protections against workplace discrimination based on sexual
orientation and gender identity that are critically important and long
overdue. Lambda Legal is the Nation's oldest and largest legal
organization dedicated to achieving recognition of the civil rights of
lesbian, gay, bisexual and transgender (``LGBT'') individuals. We were
counsel in Lawrence v. Texas, 539 U.S. 558 (2003), and co-counsel in
Romer v. Evans, 517 U.S. 620 (1996), the two most important cases ever
decided by the U.S. Supreme Court addressing sexual orientation and the
law.
It is difficult to overstate the importance of obtaining recourse
for the widespread discrimination faced by LGBT workers or the extent
to which the only realistic solution to ending such discrimination in
the foreseeable future is for Congress to enact ENDA. By passing ENDA,
Congress not only would provide a legal remedy for discrimination, but
also would make a powerful statement of principle regarding fair
treatment of all employees who work hard and perform well.
THE URGENT NEED
Lambda Legal operates a legal help desk, through which we respond
directly to members of the communities we serve who are seeking legal
information about and assistance regarding discrimination related to
sexual orientation and gender identity. While Lambda Legal has always
received such requests throughout its 36-year history, we now have the
equivalent of six full-time staff handling the thousands of calls we
receive each year. For each year from 2004 to 2007, we received more
calls regarding LGBT workplace discrimination than any other single
issue. In each of those years, we received between 900 and 1,100
employment discrimination calls. Based on our experience with our legal
help desk, we can say with confidence that these remarkable figures
certainly understate the prevalence of the problem. Over the years, we
have learned many reasons why employees choose not to pursue legal
action, including that many people know how few legal remedies exist in
most jurisdictions, and many others are afraid to come out publicly and
therefore refrain from even considering pursuit of legal action.
But this issue's resonance goes far beyond numbers. People define
themselves in large part by the work they do, spend significant
portions of their time in the workplace, and depend on their jobs to
support themselves and their families and to gain access to health care
and other benefits. The emotional investment people have in their jobs
means that it not only is devastating when one loses a job, is denied a
promotion or otherwise subjected to adverse job actions due to
discrimination, but it also takes a significant toll simply to know
that one can face harassment or discrimination at any moment and have
no redress. ENDA also would strengthen the workforce of tomorrow by
establishing that everyone has the ability to pursue the career of
their choosing and be judged on the basis of their performance and that
alone.
WHY CONGRESS MUST ACT
It also is clear that, for the foreseeable future, Congress alone
can provide a national solution to the problem. Even courts that have
agreed strongly with employees about the unfairness of discrimination
against LGBT employees have held that only Congress can add sexual
orientation to title VII.\1\ Given that most, if not nearly all, of the
States that do not protect LGBT employees under State law are also
strong employment at-will States,\2\ there generally are few, if any,
legal avenues to remedy such harassment and discrimination, and even
fewer lawyers willing to assume representation in such cases.
---------------------------------------------------------------------------
\1\ See Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257,
265 (3d Cir. 2001) (``Harassment on the basis of sexual orientation has
no place in our society.''); Simonton v. Runyon, 232 F.3d 33, 35 (2d
Cir. 2000) (describing the alleged sexual orientation discrimination
suffered by the plaintiff to be ``morally reprehensible whenever and in
whatever context it occurs, particularly in the modern workplace.'');
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cit.
1999) (``. . . harassment because of sexual orientation . . . is a
noxious practice, deserving of censure and opprobrium.''); (the alleged
harassment ``reflects conduct that is socially unacceptable and
repugnant to workplace standards of proper treatment and civility.'');
Vickers v. Fairfield Medical Center, 453 F.3d 757, 764-65 (6th Cir.
2006); Valencia v. Department of Interior, No. 3:08-CV-69-WKW, 2008 WL
4495694, *14 n.8; (M.D. Ala. Oct. 7, 2008); Lankford v. Borg Warner
Diversified Transmission Products, Inc., No. 1:02CV1876-SEB-VSS, 2004
WL 540983, *3 (S.D. Ind. Mar. 12, 2004) (``Thus, harassment and
discrimination based on sexual orientation, though morally
reprehensible, are not actionable under title VII.'' [collecting
citations]).
\2\ This appears to be the case in every State except Montana.
Mont. Code Ann. 39-2-904; see Robinson, Donald C., ``The First Decade
of Judicial Interpretation of the Montana Wrongful Discharge from
Employment Act (WDEA)'', 57 Mont. L. Rev. 375, 376 (1996); Just Cause
in Montana: Did the Big Sky Fall? Source: Barry D. Roseman, Advance:
The Journal of the ACS Issue Groups, Volt. 3 no. 1 (Spring 2009).
---------------------------------------------------------------------------
Although great progress has been made with the passage of many
State nondiscrimination laws, it could take years, or even decades, to
protect all LGBT Americans without congressional action. While 21
States now provide express statutory protection against sexual
orientation discrimination and 12 expressly cover discrimination based
on gender identity as well, in some of those States the remedies
provided are limited.\3\ In others, progress has been very slow. For
example, Delaware, which in July 2009 became the most recent State
expressly to ban sexual orientation employment discrimination, did so
after similar bills had been introduced every year since the late
1990's.\4\ In many of the 29 States without nondiscrimination statutes
expressly covering either sexual orientation or gender identity, such
legislation has never even been introduced.
---------------------------------------------------------------------------
\3\ See, e.g., Herman v. United Broth. of Carpenters and Joiners of
America, Local, 60 F.3d 1375, 1386 (9th Cir. 1995) (``. . . we have
construed Nevada law as precluding emotional distress claims in the
employment context.''); Wisconsin Department of Workforce Development,
``Remedies at a Glance'' (neither compensatory damages for emotional
harm nor punitive damages are available under the Wisconsin Fair
Employment Law); available at http://dwd.wisconsin.gov/er/
discriminationcivilrightspublicationerd11055p.htm#3.
\4\ See Delaware Employment Law Blog, published by Young, Conaway,
Stargatt & Taylor LLP, at http://www.delawareemploymentlawblog.com /
2009/06/delawaresettobandiscrimina.html.
---------------------------------------------------------------------------
A national solution is imperative not only because the right to
pursue one's livelihood free from discrimination is and should be a
shared American value, but also because the current gaps in
discrimination protection most severely affect the most vulnerable.
While approximately half of the overall population lives in
jurisdictions covered by State sexual orientation nondiscrimination
statutes, fewer than 35 percent of African-Americans do.\5\ This is
problematic not only because of the historically high degree of
discrimination against African-Americans, but especially because, in
many of the title VII cases rejecting a man's claims of discrimination
based on gender stereotypes or claims attempted to be brought based on
actual or perceived sexual orientation, the employee was an African-
American man.\6\ The residents of States without nondiscrimination
statutes also have significantly lower levels of education attainment,
reducing their employment options when discrimination occurs.
---------------------------------------------------------------------------
\5\ See http://www.census.gov/compendia/statab/ranks/rank12.html.
\6\ See Mary Anne C. Case, Disaggregating Gender from Sex and
Sexual Orientation: The Effeminate Man in the Law and Feminist
Jurisprudence, 105 Yale L.J. 1, 50-51 and n.166 (1995); Dillon v.
Frank, 90-2290, 952 F.2d 403 (Table), 1992 WL 5436 (6th Cir. Jan. 15,
1992); Spearman v. Ford Motor Co., 231 F.3d 1080 (7th Cir. 2000).
---------------------------------------------------------------------------
The need for Congress to act goes beyond creating a remedy for
sexual orientation and gender identity discrimination. Unfortunately,
some courts have ruled against claims brought by LGBT workers for
discrimination they experience based on sex or religion (both of which
title VII already covers) by attributing the discrimination to sexual
orientation or gender identity rather than these other grounds.
Moreover, in denying an LGBT person the right to pursue the same theory
of relief for sex or religious discrimination enjoyed by everyone else,
courts have acknowledged that existing title VII principles support the
claim, but ruled against LGBT employees because they viewed
Congressional inaction on sexual orientation nondiscrimination bills as
proof that Congress wanted to deny LGBT employees any recourse for sex
or religious discrimination that might be related to the employee's
sexual orientation or gender identity.
The most common example of this problem are cases holding sex
discrimination claims by LGBT employees to a different standard. For at
least the last 20 years, it has been the law that the ``because of
sex'' language in title VII precludes an employer from discriminating
against an employee because he or she failed to conform to the
employer's sex-based stereotypes. See Price-Waterhouse v. Hopkins, 490
U.S. 228, 251 (1989) (title VII was violated where a woman was denied
partnership ``on the basis of a belief that a woman cannot be
aggressive, or that she must not be.''). Thus, an employer cannot fire
or refuse to hire a woman because it believes her to be insufficiently
feminine--or a man because he is deemed insufficiently masculine \7\
When this claim, known as sex stereotyping,\8\ is brought by an LGBT
employee, most courts have followed the correct approach that the
employee's sexual orientation is irrelevant, i.e., that title VII
protects both an effeminate heterosexual man and an effeminate gay man
from sex discrimination.\9\ However, some courts have taken a
dramatically different approach to sex stereotyping claims brought by
LGBT employees. These courts incorrectly have refused to allow LGBT
employees to proceed with their claims based on an argument that
Congress supposedly wanted to exclude employment discrimination
protections for LGBT people from title VII. In the process, they ignore
the fact that an LGBT person has the same right to be free from sex
discrimination that all other employees enjoy.
---------------------------------------------------------------------------
\7\ Doe v. City of Belleville, 119 F.3d 563, 581 (7th Cir. 1998)
(``[A] man who is harassed because his voice is soft, his physique is
slight, his hair is long, or because in some other respect he exhibits
his masculinity in a way that does not meet his coworkers' idea of how
men are to appear and behave, is harassed `because of ' his sex.''),
judgment vacated and remanded, 523 U.S. 1001 (1999) (held still to
constitute valid precedent on this point in Bibby v. Phila. Coca Cola
Bottling Co., 260 F.3d 257, 263 n.5 (3rd Cir. 2001)); Higgins v. New
Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cit. 1999)
(``Just as a woman can ground an action on a claim that men
discriminated against her because she did not meet stereotyped
expectations of femininity, a man can ground a claim on evidence that
other men discriminated against him because he did not meet stereotyped
expectations of masculinity.''); Bibby, 260 F.3d at 262-63; Nichols v.
Azteca Rest. Enters., 256 F.3d 864, 874-75 (9th Cit. 2001).
\8\ Price-Waterhouse, 490 U.S. at 250-51.
\9\ Bibby, 260 F.3d at 265 (``once it has been shown that the
harassment was motivated by the victim's sex, it is no defense that the
harassment may have also been partially motivated by anti-gay or anti-
lesbian animus. For example, had the plaintiff in Price Waterhouse been
a lesbian, that fact would have provided the employer with no excuse
for its decision to discriminate against her because she failed to
conform to traditional feminine stereotypes.''); Doe, 119 F.3d at 594;
Centola v. Potter, 183 F. Supp. 2d 403, 409-10 D. Mass. 2002)
(``Centola does not need to allege that he suffered discrimination on
the basis of his sex alone. . . . [T]he fact that he was also
discriminated against on the basis of his sexual orientation has no
legal significance under title VII.'').
---------------------------------------------------------------------------
For example, one court obsessed over ``sexual orientation (or other
unprotected) allegations masquerading as gender stereotyping claims,''
and about employees' ``crafting the [sexual orientation] claim as
arising from discrimination based upon gender stereotypes.'' \10\
Another court simply imagined a ``clear warning'' from a higher court
that the gender stereotyping theory ``not bootstrap protection for
sexual orientation into title VII.'' \11\
---------------------------------------------------------------------------
\10\ Dawson v. Bumble & Bumble, 398 F.3d 211, 219 (2d Cir. 2005)
(citations omitted). Indeed, the approach of Dawson to criticize
lawyers who ``counsel[] gay plaintiffs bringing claims under title VII
[to] emphasize the gender stereotyping theory and de-emphasize any
connection the discrimination has to homosexuality'' is a self-
fulfilling prophecy, as shown by Lambda Legal's legal help desk
experience. Callers who have reported dealing with agencies and human
relations departments about harassment based both on sex stereotypes
and sexual orientation have reported that their grievances are treated
primarily or exclusively as based on sexual orientation. Given this
history, and the approach of Dawson, Trigg (infra), and Kay (infra), it
is hardly surprising that employees would be counseled about how to
avoid having their grievances summarily--and incorrectly--ignored.
\11\ Trigg v. New York City Transit Auth., No. 99-CV-4730 (ILG),
2001 WL 868336 (E.D.N.Y. July 26, 2001), quoting Simonton v. Runyon,
232 F.3d 33, 38 (2d Cir. 2000). In fact, the Simonton court expressed
support for the notion that a gay or lesbian employee can bring a title
VII sex discrimination claim if the employee presents the theory and
facts to the EEOC and district court. The passage misunderstood by the
Trigg court makes the point that allowing a sex stereotyping claim by a
gay man or lesbian is not equivalent to engrafting sexual orientation
onto title VII; rather, the Simonton court pointed out that a sex
stereotyping theory ``would not bootstrap protection for sexual
orientation into title VII because not all homosexual men are
stereotypically feminine, and not all heterosexual men are
stereotypically masculine'' 232 F,3d at 38.
---------------------------------------------------------------------------
Instead of simply evaluating whether the gender stereotyping
allegations, in and of themselves, make out a case, these courts have
followed the incorrect approach of weighing the gender stereotyping
harassment suffered by the employee against facts also showing that
sexual orientation harassment also was occurring, and have concluded
that, if the latter was more prevalent, there is no claim.\12\ This
approach sends the message that one can escape liability for his (or
her) sex discrimination simply by engaging in more flagrant or frequent
sexual orientation discrimination.
---------------------------------------------------------------------------
\12\ In Kay v. Independence Blue Cross, No. CIV.A. 02-3157, 2003 WL
21197289 (E.D. Pa. May 16, 2003), the District Court held that two
instances of the employee's being told he was ``not a real man'' were
not pervasive enough to sustain a title VII claim. On appeal, although
all three judges agreed with the District Court, two of the three felt
compelled to articulate a ``differ[ent] . . . approach'' by incorrectly
focusing on the antigay harassment. The court held that the two
instances, ``viewed in the broader context of the harassment alleged by
Kay . . . demonstrates that the harassment was based on perceived
sexual orientation, rather than gender.'' Kay v. Independence Blue
Cross, 142 Fed. Appx. 48, 50 (3d Cir. 2005). In Trigg, supra, the court
dismissed allegations that Trigg was called a `sissy,' told ``he would
have to learn how to carry bags of nickels `more manly' '' told he
``wasn't going to make it in the job if [he were] not more manly, and
was told that he was working like a woman,'' because ``In contrast to
Trigg's assertion that he is a victim of gender stereotype
discrimination, his Amended Complaint is rife with references to sexual
orientation, homophobia, and accusations of discrimination based on
homosexuality.'' 2001 WL 868336 at *6. The Second Circuit also ruled
against Trigg, but corrected the District Court's approach of weighing
the sexual orientation discrimination against the sex discrimination.
Trigg v. New York Transit Auth., 50 Fed. Appx. 458, 459-60 (2d Cir.
2002).
---------------------------------------------------------------------------
Another example of improper exclusion of LGBT employees from title
VII's protections is in the context of a religious discrimination
claim. It is widely recognized that title VII covers an employee who is
fired ``simply because he did not hold the same religious beliefs as
his supervisors.'' Shapolia v. Los Alamos Nat. Laboratory, 992 F.2d
1033, 1037 (10th Cir. 1993); Venters v. City of Delphi, 123 F.3d 956,
972 (7th Cir. 1997) (``Venters need only show that her perceived
religious shortcomings [her unwillingness to strive for salvation as
Ives understood it, for example] played a motivating role in her
discharge.'').\13\ Under this standard, an employee who gets a divorce,
has an extramarital affair, or simply fails to accept or adhere
generally to the employer's religious precepts, could invoke title VII
if the employer fired him or her on that basis.\14\ Thus, lesbian or
gay men fired solely for failing to comply with the employer's
religious beliefs should be able to invoke title VII, but in August,
the Third Circuit rejected exactly that claim,\15\ not for any logical
reason, but based solely on Congress' supposed intent to prevent
employment discrimination claims based on sexual orientation or gender
identity.\16\
---------------------------------------------------------------------------
\13\ Accord Noyes v. Kelly Services, 488 F.3d 1163, 1166, 1168-69
(9th Cir. 2007); Panchoosingh v. General Labor Staffing Services, Inc.,
No. 07-80818-CI, 2009 WL 961148, *6 (S.D. Fla. Apr. 8, 2009); Tillery
v. Asti, Inc., 247 F. Supp. 2d 1051, 1062-63 (N.D. Ala. 2003), aff 'd
without opinion, 97 Fed. Appx. 906 (Table) (11th Cir. 2004)
(unpublished); Backus v. Mena Newspapers, Inc., 224 F. Supp. 2d 1228,
1233 (W.D. Ark. 2002); Henegar v. Sears, Roebuck and Co., 965 F. Supp.
833, 837 (N.D. W.Va. 1997); Yancey v. National Center on Institutions
and Alternatives, 986 F. Supp. 945, 955 (D. Md. 1997); Sarenpa v.
Express Images Inc., Civ.04-1538(JRT/JSM), 2005 WL 3299455, *3 (D. Minn
Dec. 1, 2005); Kaminsky v. Saint Louis University School of Medicine,
No. 4:05CV1112 CDP, 2006 WL 2376232, *5 (E.D. Mo. Aug. 16, 2006).
\14\ See Kaminsky, 2006 WL 2376232 at *5 (getting a divorce);
Sarenpa v. Express Images Inc., 2005 WL 3299455 at *3 (extramarital
affair); Henegar, 965 F. Supp. at 834 (living with a man while going
through divorce proceedings against her husband); Noyes, 488 F.3d at
1166, 1168-69 (failure to live up generally to employer's religious
beliefs); Venters, 123 F.3d at 972 (same).
\15\ Prowel v. Wise Business Forms, Inc., 575 F.3d 285, 293 (3d
Cir. 2009) (``Given Congress's repeated rejection of legislation that
would have extended title VII to cover sexual orientation, see Bibby,
260 F.3d at 261, we cannot accept Prowel's de facto invitation to hold
that he was discriminated against `because of religion' merely by
virtue of his homosexuality.'').
\16\ Whether or not one agrees that the conduct in Prowel should be
considered religious discrimination, ENDA provides the optimal result
of making clear that discrimination against LGBT employees, whether
based on religious or secular grounds, is prohibited.
---------------------------------------------------------------------------
Just as it was unfair to these LGBT litigants to be treated
differently than other employees claiming sex or religious
discrimination, it was wrong for these courts to attribute to Congress
an intent to exclude LGBT employees from the current scope of title
VII. Indeed, Lambda Legal consistently has insisted to courts that
Congress intended, in passing title VII, to `` `strike at the entire
spectrum of disparate treatment of men and women resulting from sex
stereotypes.' Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989).''
\17\ But fair or unfair, it is now apparent that, if Congress fails to
pass ENDA, not only will all courts deny protection against sexual
orientation and gender identity discrimination under title VII, but
some courts incorrectly will refuse to entertain a title VII sex or
religious discrimination case brought by an LGBT employee, simply
because of inaction on ENDA.
---------------------------------------------------------------------------
\17\ Brief of Amici Curiae Lambda Legal Defense and Education Fund,
Inc. and the National Employment Lawyers Association in Support of
Appellant and of Reversal of the Judgment Below, 2002 WL 32625900, *7,
Trigg v. New York City Trans. Auth., 2d Cir.; Brief of Amici Curiae
American Civil Liberties Union, American Civil Liberties Union of Utah,
Lambda Legal Defense & Education Fund, Inc., and National Center for
Lesbian Rights in Support of Appellant Krystal Etsitty and Reversal of
the District Court, 2005 WL 3516739, *3, Etsitty v. Utah Transit Auth.,
10th Cir.; see also 1997 WL 471805, *8, Oncale v. Sundower Offshore
Servs., U.S. S. Ct., Brief of Lambda Legal Defense Fund, Inc., et al.,
as Amici Curiae in Support of Petitioner (`` `Congress' intent' in
enacting title VII was `to forbid employers to take gender into account
in making employment decisions[.]' '') (quoting Price-Waterhouse, 490
U.S. at 239).
---------------------------------------------------------------------------
LGBT DISCRIMINATION IN PUBLIC EMPLOYMENT
As you are no doubt aware, in enacting a remedy that abrogates the
sovereign immunity of the States, Congress should have evidence of
discriminatory practice in the public sector. However, evidence of
discrimination in the private sector is relevant to this inquiry where
the congressional record reflects that the problem is similar in the
private and public sector.\18\ Unfortunately, it is the case that the
public employment discrimination problem is similar, or even worse,
given that it occurs against a backdrop of clear unlawfulness
nationwide.
---------------------------------------------------------------------------
\18\ Tennessee v. Lane, 541 U.S. 509, 528 (2004); Nevada Dept. of
Human Resources v. Hibbs, 538 U.S. 721, 728-733 (2003).
---------------------------------------------------------------------------
A review of nondiscrimination policies and directives illustrates
the ongoing problem in public employment. According to Equality Forum,
473 of the Fortune 500 companies have policies against sexual
orientation discrimination.\19\ Of the 473 companies, 252 are
headquartered in States with nondiscrimination statutes, but these
companies' policies cover all employees, including those in States with
no protection. More impressively, 221 of the companies are
headquartered in States that do not ban sexual orientation
discrimination.
---------------------------------------------------------------------------
\19\ http://www.equalityforum.com/fortune500/
listing.cfm?Status=1&Order=3. Equality Forum is a national and
international nonprofit 501(c)(3) GLBT civil rights organization with
an educational focus. Through its Fortune 500 Project, Equality Forum
lobbies the Nation's largest corporations for sexual orientation
discrimination protection by making the business case to CEOs, Human
Resources Directors, Boards of Directors and large institutional
investors at noncompliant companies. While Equality Forum's report of
Fortune 500 companies with sexual orientation nondiscrimination
policies differs somewhat from that of the Human Rights Campaign, the
HRC report that 85 percent of Fortune 500 companies had such policies
in 2008 also places the largest private sector companies well ahead of
the States in instructing managers not to discriminate. See http.//
www.hrc.org/issues/workplace/equal_opportunity/about_equal_opportunity
asp.
---------------------------------------------------------------------------
By contrast, of the 29 States that do not have sexual orientation
discrimination statutes, only 11 have issued executive orders providing
a clear State-law directive not to discriminate in public employment
based on sexual orientation, and thus not to potentially incur
liability for such conduct, and only 5 of these include gender identity
in such executive orders.\20\ This is despite the fact that it is well-
established, according to numerous courts, that the government violates
equal protection guarantees when it discriminates against employees
based on sexual orientation \21\ or on gender identity and
expression.\22\
---------------------------------------------------------------------------
\20\ Alaska (Admin. Order No. 195 (2002)); Arizona (Executive Order
2003-22); Indiana (2004 Policy Statement--see http://www.in.gov/spd/
files/eehandbook.pdf at p.13) (includes gender identity): Kansas
(Executive Order 07-24) (includes gender identity); Kentucky (Executive
Order 2008-473) (includes gender identity); Louisiana (Executive Order
No. KBB 2004-54); Michigan (Executive Directive 2003-24); Montana (EEO
Rules, 2.21.4001 et seq.); Ohio (Executive Order 2007-10S) (includes
gender identity); Pennsylvania (Executive Order 2003-10) (includes
gender identity); Virginia (Executive Order No. 1).
\21\ See, e.g., Miguel v. Guess, 112 Wash. App. 536, 554, 51 P.3d
89, 97 (2002) (``we hold that a State actor violates a homosexual
employee's right of equal protection when it treats that person
differently than it treats heterosexual employees, based solely upon
the employee's sexual orientation.''); Quinn v. Nassau County Police
Dept., 53 F. Supp. 2d 347, 357 (E.D.N.Y. 1999) (``a hostile work
environment directed against homosexuals [employed by the government]
based on their sexual orientation constitute[s] an Equal Protection
violation.''); Emblen v. Port Authority of New York/New Jersey, 2002
No. 00 Civ. 8877(AGS), 2002 WL 498634, 7 (S.D.N.Y. Mar. 29, 2002);
Lovell v. Comsewogue School Dist., 214 F. Supp. 2d 319, 323 (E.D.N.Y.
2002); Snetsinger v. Montana University System, 325 Mont. 148, 157, 104
P.3d 445, 452 (2004); Glover v. Williamsburg Local School Dist. Bd. of
Educ., 20 F. Supp. 2d 1160, 1169 (S.D. Ohio 1998); Weaver v. Nebo
School Dist., 29 F. Supp. 2d 1279, 1289 (D. Utah 1998); Beall v. London
City Sch. Dist. Bd of Educ., No. 2:04-cv-290, 2006 WL 1582447, at *15
(S.D. Ohio June 8, 2006); Marcisz v. City of New Haven, No. Civ. 3:04-
CV-01239WW, 2005 WL 1475329, at *2 (D. Conn. June 22, 2005); O.H. v.
Oakland Unified Sch. Dist., No. C-99-5123, 2000 WL 33376299, at *9-10
(N.D. Cal. Apr. 17, 2000); Tester v. City of New York, No. 95 Civ.
7972, 1997 WL 81662, at *5-*6 (S.D.N.Y. Feb. 25, 1997).
\22\ Smith v. City of Salem, Ohio, 378 F.3d 566, 577 (6th Cir.
2004) (allegation of discrimination against transitioning employee
stated a claim for sex discrimination under the Equal Protection
Clause); Glenn v. Brumby, 632 F. Supp. 2d 1308, 1316 (N.D. Ga. 2009)
(same); Doe v. U.S. Postal Service, No. 84-3296, 1985 WL 9446 (D.D.C.
June 12, 1985) (same).
---------------------------------------------------------------------------
A government employer's discrimination may violate other
constitutional rights of the affected employee. For example, courts
have recognized that a public employer violates an employee's First
Amendment rights by taking action against the employee for being openly
gay or supportive of others who are.\23\ Additionally, in ruling that
sodomy laws violated the Due Process Clause, the Supreme Court in
Lawrence v. Texas specifically noted that sodomy laws ``legally
sanction[] discrimination . . . including in the area[] of
employment.\24\ Lawrence solved this legal problem for public
employees.
---------------------------------------------------------------------------
\23\ E.g., Weaver, supra, 29 F. Supp. 2d at 1289; Ancafora v. Board
of Educ., 491 F.2d 498 (4th Cir. 1974); Van Ooteghem v. Gray, 654 F.2d
304 (5th Cir. 1981) (en banc). An example of public sector
discrimination violating both equal protection and First Amendment
rights is Lambda Legal's case, Plymouth-Canton Education Association v.
Plymouth-Canton Board of Education, discussed below.
\24\ Lawrence v. Texas, 539 U.S. 558, 582 (2003) (citation
omitted). An example of how sodomy laws violated public employees' Due
Process rights is Shahar v. Bowers, 114 F.3d 1097, 1104-05 (11th Cir.
1997) (en banc), discussed below.
---------------------------------------------------------------------------
Given that a primary purpose of executive orders is to ensure the
faithful execution of the law,\25\ it is notable that so many States
have not mandated compliance with constitutionally mandated principles
of equal protection.\26\ This is especially so, given that, in these
States, the absence of any statutory provision, coupled with typically
rigorous adherence to the at-will doctrine, suggests a greater risk
that an official might neglect the government's constitutional
obligation not to discriminate.\27\
---------------------------------------------------------------------------
\25\ E.g., Morris v. Governor, 214 Mich. App. 604, 610, 543 N.W.2d
363, 365 (1995); Communications Workers of America, AFL-CIO v. Florio,
130 N.J. 439, 455, 617 A.2d 223, 231 (1992); Va. Op. Atty Gen. 05-094
(Feb. 24, 2006).
\26\ While a State government would not be ordered to pay damages
in a section 1983 discrimination suit, see Will v. Michigan Dep't of
State Police, 491 U.S. 58 (1989), it has many financial incentives to
prevent such lawsuits. It well may have to defend such a suit for
nonmonetary relief (such as re-instatement), and may have assumed
responsibility for paying an award that could be ordered against an
individual State official. See Luder v. Endicott, 253 F.3d 1020, 1023
(7th Cir. 2001) (``These examples show that the Eleventh Amendment does
not protect the States against every expense or inconvenience . . .
especially but not only expenses and inconveniences that a State could
largely avoid by being hardhearted about claims against its employees
[i.e., not pay them!].''); see also id. (citing cases holding that a
State cannot extend its own immunity to its employees by agreeing to
indemnify them for damage awards).
\27\ The recent examples of anti-LGBT discrimination in public
employment set forth below and in the appendix are especially relevant,
coming after Federal courts have made it clear that such action is
unlawful. See Tennessee v. Lane, 541 U.S. 509, 528 (2004) (``This
pattern of disability discrimination persisted despite several Federal
and State legislative efforts to address it''); cf Board of Trustees of
University of Alabama v. Garrett, 531 U.S. 356, 370 n.6 (2001) (``But
there is no indication that any State had persisted in [such
discrimination against the mentally disabled] as of 1990 when the ADA
was adopted.'').
---------------------------------------------------------------------------
Moreover, even some of the few orders that have been issued have
become political footballs. In Kentucky, Governor Paul Patton issued an
order prohibiting sexual orientation and gender identity discrimination
in State employment in 2003. In 2006, Governor Ernie Fletcher rescinded
that order. After Steven Beshear soundly defeated Fletcher in 2007 to
become governor, Beshear re-instated the executive order in 2008. In
2004, Louisiana Governor Kathleen Blanco issued an executive order
preventing sexual orientation discrimination in State employment; the
current governor, Bobby Jindal, let that provision lapse in 2008. In
2005, Virginia Governor Mark Warner issued a nondiscrimination
executive order that was re-issued by his successor, Tim Kaine, in
2006. The Virginia Attorney General, despite acknowledging the
governor's duty to execute the law faithfully, held that the order was
unconstitutional because the Virginia legislature had not enacted such
a protection. Va. Op. Atty Gen. 05-094 (Feb. 24, 2006). The opinion did
acknowledge that previous executive orders regarding nondiscrimination
included categories that had not been covered by Virginia law but were
covered by Federal law, but then stated that ``I need not opine,
however, on the impact of Federal law and reliance thereon for an
executive order as it is not relevant to the current inquiry,''
apparently not regarding the U.S. Constitution as part of Federal law.
See id. In sum, due to various actions and inactions, most supervisors
in the public sector are not provided with guidance as to their clear
obligation not to discriminate, while supervisors in the private sector
are given that instruction, whether or not a legal obligation exists.
Moreover, an individual government official can be held personally
liable for discrimination, unlike title VII.\28\ The threat of having
to pay out of pocket is very real, because courts have found the right
to be free from LGBT discrimination in the public workplace so well-
established that an official cannot claim qualified immunity.\29\ Given
that Section 1983 not only provides a clear remedy for discrimination
in public employment, regardless of the jurisdiction's local laws, and
given that an individual government official can be held personally
liable, one might expect instances of discrimination and harassment in
public employment to be rare. Sadly, that is not the case. Below are a
few examples of Lambda Legal's work to combat LGBT discrimination at
the State and local levels:
---------------------------------------------------------------------------
\28\ See, e.g., Smith v. Lomax, 45 F.3d 402, 407 (11th Cir. 1995).
\29\ Beall, 2006 WL 1582447 at *15 (anti-gay discrimination was
both objectively unreasonable and clearly proscribed so as to defeat
qualified immunity); see also Lovell, 214 F. Supp. 2d at 325 (no
qualified immunity); Emblem, 2002 WL 498634 at *11 (same); Miguel, 51
P.3d at 99 (same).
Grobeson v. City of Los Angeles.--Lambda Legal client
Mitchell Grobeson was the first openly gay officer in the Los Angeles
Police Department. In 1993, Grobeson settled a sexual orientation
employment discrimination lawsuit he had filed against the city of Los
Angeles after suffering harassment and discrimination when he was a
sergeant. A settlement reached in the case resulted in his re-
instatement to the force, but Grobeson soon had no option but to file a
second lawsuit, charging the city and numerous police staff with
violating the settlement agreement, as well as his Federal and State
constitutional and State statutory rights. Grobeson also challenged the
LAPD's decision to suspend him for his ``unauthorized recruiting'' of
lesbians and gay men to join the force, and for allegedly wearing his
uniform without permission in a photo in a gay weekly, and at gay pride
and AIDS-awareness events. This second lawsuit prompted the city to
make widespread improvements in its sexual orientation employment
policies.
Plymouth-Canton Education Association v. Plymouth-Canton
Board of Education.--Openly gay teachers Mike Chiumento and Tom
Salbenblatt, who were Lambda Legal clients, challenged their school
district's order that they dismantle school displays that commemorated
the historical role of lesbians and gay men, and addressed anti-gay
harassment. The displays were in keeping with the school's theme of
respect and dignity for all. In contrast to when similar, prior lesbian
and gay history month displays were created by a non-gay staff member,
Chiumento and Salbenblatt were attacked by the interim superintendent
and members of the Board of Education for supposedly ``promoting''
their personal ``lifestyles.'' The arbitrator who decided the case
found the district had violated one teacher's constitutional right of
free speech and had wrongfully discriminated against both teachers.
Glenn v. Brumby et al.--Vandy Beth Glenn worked for 2
years in the General Assembly's Office of Legislative Counsel as an
editor and proofreader of bill language. After she was diagnosed with
Gender Identity Disorder (GID), Glenn informed her immediate supervisor
that she planned to proceed with her transition from male to female.
Subsequently, Sewell Brumby, who is the head of the office in which
Glenn worked, summoned Glenn to his office. After confirming that Glenn
intended to transition, Brumby fired her on the spot. On July 22, 2008,
Lambda Legal brought a Federal lawsuit on behalf of Glenn, which
included a claim that her firing violated the Constitution's equal
protection guarantee because it treated her differently due to her
female gender identity and her nonconformity with gender stereotypes.
In June 2009, a Federal court denied a motion to dismiss the case,
ruling that ``Defendants do not claim that Glenn's transition would
have rendered her unable to do her job nor do they present any
government purpose whatsoever for their termination of Plaintiff 's
employment. . . . Anticipated reactions of others are not a sufficient
basis for discrimination.''
Shahar v. Bowers.--After graduating at the top of her
class from Emory Law, Robin Shahar was offered a position in the
Georgia Attorney General's Office. Before she began the job, State
Attorney General Michael Bowers learned of her plans to hold a
commitment ceremony with her same-sex partner and rescinded the job
offer. Bowers claimed that Shahar's sexual orientation would prevent
her from enforcing the sodomy law then on the State's books, and a
Georgia district court upheld his decision. Appealing the decision,
Shahar cited violations of her First Amendment rights to free
association and Fourteenth Amendment rights to equal treatment. Shahar
initially won on appeal; however, the Eleventh Circuit decided to
rehear the case before the entire court, which then decided for
Bowers.\30\
---------------------------------------------------------------------------
\30\ Lambda Legal submitted a friend-of-the-court brief to the 11th
Circuit on Shahar's behalf and assisted with the petition to the
Supreme Court. Lead counsel in the case, Ruth Harlow was working for
the ACLU during Shahar's case. She subsequently became Legal Director
of Lambda Legal and lead counsel in Lawrence v. Texas.
---------------------------------------------------------------------------
Mitchell v. Bremen Community High School District No. 228
and Gleason, et al.--In 2004, Richard Mitchell interviewed for the
position of superintendent of Bremen Community High School District No.
228 in Chicago. Following his interview, school board member Evelyn
Gleason encouraged the board not to hire him because he is gay. But the
board chose to hire Mitchell and in 2005 extended his 3-year contract.
Soon after, Gleason became president of the school board and was able
to do what she'd always wanted: get rid of Mitchell. When Mitchell
notified the board that he intended to pursue his rights under local
laws prohibiting sexual orientation discrimination, Gleason retaliated
by trumping up false allegations against Mitchell in the media. He was
suspended and later fired. Lambda Legal filed a complaint charging that
Gleason's and the school board's actions are illegal under the Cook
County Human Rights Ordinance, which is currently pending.
Etsitty v. Utah Transit Authority.--Utah Transit Authority
(UTA) hired Krystal Etsitty as a bus driver in 2001. Her work record
was spotless. After telling her supervisor that she was undergoing
gender transition and would be appearing more feminine at work, Etsitty
gradually began to wear makeup and jewelry. Soon after, her supervisors
decided that Etsitty's transition created an ``image issue'' for UTA,
and they terminated her. Although UTA acknowledged that no one had
complained about her performance or appearance, it claimed that the
public would see Etsitty as ``inappropriate.'' The U.S. District Court
for the district of Utah ruled against Etsitty, holding that title VII
does not protect transgender employees.\31\ Lambda Legal joined other
groups in filing a friend-of-the-court brief in the Tenth Circuit Court
of Appeals in Etsitty's support.\32\ While the court ruled against
Etsitty, it did, as urged by our brief, reject the district court's
approach of excluding all transgender employees from the sex
stereotyping discrimination protections of title VII.\33\
---------------------------------------------------------------------------
\31\ Etstity v. Utah Transit Auth., 2:04CV616 DS, 2005 WL, 1505610
*4 (D. Utah, June 24, 2005).
\32\ See n.17, supra.
\33\ Etstio v. Utah Transit Auth., 502 F.3d 1215, 1222 n.2 (10th
Cir. 2007).
---------------------------------------------------------------------------
Kastl v. Maricopa County Community College Dist.--During
her gender transition, Rebecca Kastl worked as an instructor for the
Maricopa County Community College District (``MCCCD'') while attending
classes there. MCCCD banned Kastl from using the women's restroom until
she could prove completion of sex reassignment surgery and then later
refused to renew her teaching contract. The trial court ruled against
Kastl on a novel theory potentially very damaging to the transgender
community: that Kastl had failed to state a prima facie case because
she had not provided ``evidence that she was a biological female.''
\34\ While the Ninth Circuit also ruled for Kastl, it did reject, as
urged in Lambda Legal's amicus brief, the trial court's holding that
Kastl failed to state a prima facie case of gender stereotyping
discrimination under title VII.\35\
---------------------------------------------------------------------------
\34\ Kastl v. Maricopa County Community College Dist., No. CV-02-
1531-PHX-SRB, 2006 WL 2460636 *6 (D. Ariz. Aug. 22, 2006).
\35\ Kastl v. Maricopa County Community College Dist., 325 Fed.
Appx. 492, 493 (9th Cir. 2009) (``it is unlawful to discriminate
against a transgender (or any other) person because he or she does not
behave in accordance with an employer's expectations for men or women.
[citing Smith v. Salem]. Thus, Kastl states a prima facie case of
gender discrimination under Title VII on the theory that impermissible
gender stereotypes were a motivating factor in MCCCD's actions against
her.'').
Additionally, attached as an appendix is a brief synopsis of
instances of public sector discrimination described by callers to
Lambda Legal's help desk. Confidentiality concerns preclude our
providing names or other identifying information or discussions of
legal strategy. However, we wanted to provide these stories of
discrimination, so that this committee could have a fuller
understanding of the problem of public sector discrimination against
LGBT employees, even if any attempt to capture this problem necessarily
understates the problem.
Again, we strongly urge you to support ENDA and would be happy to
answer any questions you may have or provide any other assistance you
may request.
Respectfully yours,
Hayley Gorenberg,
Acting Legal Director.
Appendix
Examples of Public Sector Discrimination Based on Sexual Orientation or Gender Identity and Expression
----------------------------------------------------------------------------------------------------------------
Caller Employer State Year Description
----------------------------------------------------------------------------------------------------------------
Caller A........................ Municipality...... NY................ 2009.............. Adverse employment
action; demotion:
Caller A is a
long-time
seasonal employee
for a local board
of education.
After disclosing
to the director
that she and her
lesbian partner
were going to
move in together,
her director
replied
negatively, and
the contract she
had had renewed
for 10 years was
not renewed
again. Her
director called
her and instead
offered her a job
that paid $9 an
hour instead of
her usual $18 an
hour, and
employed her for
only 3 hours a
day instead of
the full time she
previously
worked.
Caller B........................ Municipality...... VA................ 2009.............. Harassment;
discrimination in
terms and
conditions of
employment:
Caller B is not a
gay man but he is
perceived as such
by his coworkers
and was subjected
to relentless
harassment. His
supervisor talked
incessantly about
having anal sex
with Caller B and
would tell Caller
B sexually-
charged stories
about the
supervisor's time
in jail. Caller B
also has been
forced by this
supervisor to
perform far more
demanding work
than his
colleagues,
despite his being
physically
smaller than they
are.
Caller C........................ County School MO................ 2008.............. Non-renewal of
District. contract: Gym
teacher in a
public school did
not have her
contract renewed
and believes this
was due to her
sexual
orientation. She
overheard one of
the school board
members say that,
had he known
Caller C was a
``dyke,'' he
would never have
hired her in the
first place.
Caller D........................ Municipal Fire CA................ 2008.............. Failure to
Department. promote;
harassment:
Deputy fire
marshal passed
test for the
position of
battalion chief
but was not
promoted. He
subsequently
learned that the
fire chief told
another employee
that he believed
Caller D was not
promotable
because he is
gay. After Caller
D filed an
internal
complaint, the
work environment
became
progressively
more hostile.
Caller E........................ Municipal Police OK................ 2008.............. Harassment;
Department. discrimination in
terms and
conditions of
employment:
Police officer
transitioned on
the job from male
to female. She
thereafter
experienced
severe harassment
based on her
gender identity.
After her
transition, the
police department
also insisted
that she undergo
psychological
evaluations and
transferred her
to an unfavorable
position.
Caller F........................ Public High School IL................ 2008.............. Harassment:
Teacher was
repeatedly
harassed by
students, who,
among other
things, wrote on
the tables in his
classroom that
``[Caller F] is a
fag'' and
included similar
derogatory
phrases in
textbooks in his
class. Caller F
made complaints
to the
administration
about this
harassment but
received no
response. Caller
F is perceived to
be gay but in
fact he is a
married
heterosexual man.
Caller G........................ Municipality...... AL................ 2007.............. Harassment;
discrimination in
terms and
conditions of
employment: City
communication
technician began
to experience
workplace
harassment based
on her gender
identity when a
new supervisor
was hired. In
addition, Caller
M's new
supervisor
assigned her to
work with
coworkers who did
not want to work
with her because
she is
transgender and
gave her
unfavorable work
assignments,
which entailed
more difficult
tasks than those
required of other
employees.
Caller H........................ Municipal Code TX................ 2007.............. Harassment;
Enforcement failure to
Office. promote: After a
code compliance
inspector
designated her
same-sex partner
as a beneficiary
for certain
employment
benefits, the
officer
administrator
told everyone
that Caller H is
a lesbian.
Coworkers made
repeated
derogatory
comments about
``faggots'' and
one female
religious
employee told
Caller H that,
because she did
not have a
boyfriend, she
``wasn't whole .
. . that's your
problem.'' A
picture of Janet
Jackson's breast
was placed on
Caller H's
computer.
Complaints to her
manager were
rejected. When a
new supervisor
was hired, he
would ignore
Caller H and
avoid eye contact
with her at
meetings. He also
required caller H
to train three
replacements for
a management
position that she
was qualified for
and that she had
been told she
would receive
prior to his
arrival.
Caller I........................ Municipal Police SC................ 2007.............. Failure to hire:
Department. Caller I had quit
the State police
academy in
another State to
move to South
Carolina. She
received a good
reference from
her former
employer and,
according to
Caller I, she
also has a ``good
background and a
degree.'' Caller
I applied to a
police department
in South Carolina
and, during a
routine polygraph
test, she was
asked if she is a
lesbian. She
responded
truthfully that
the answer was
``yes.'' She
thereafter was
not selected for
the position. She
learned from
references she
had given that
they had not been
contacted.
Caller J........................ Municipal Fire OK................ 2007.............. Harassment: Caller
Department. J has been an
electronic
technician who
repairs city
traffic lights
and works out of
a city firehouse.
After another
employee learned
that Caller J is
gay, Caller J
began to
experience
mounting
harassment from
coworkers,
including being
called a
``c**ks***er,''
being whistled
at, being told
that ``Queers are
just s**t; people
like you float,''
and being
lectured that
homosexuality is
``against the
Bible'' and that
gay people are
``an abomination
to God.'' When a
new employee
complained about
having to clean
the showers at
the firehouse,
Caller J
commented that
they were so
filthy that he
wouldn't take a
shower with his
male coworkers.
The new employee
replied that,
according to what
he had heard from
others, he had
thought that
``you'd like
that.'' Most
serious is that a
coworker
repeatedly
screamed at
Caller J,
physically
intimidated him,
and twice
threatened to
kill him. When
Caller J
complained, his
shift was changed
against his
wishes so that he
would not work
the same time as
that coworker.
The department
administrator has
refused to give
Caller J a copy
of the employee
policies on
sexual harassment
and
nondiscrimination
.
Caller K........................ County Sheriff IL................ 2007.............. Harassment;
Department. failure to
promote: Caller K
is a corrections
officer. A fellow
officer
repeatedly
referred to
Caller K as a
``motherf****n'
faggot'' in front
of other officers
and inmates. The
officer who did
this was not
suspended, even
though two
employees who had
used the ``N-
word'' around the
same time had
been immediately
terminated. After
Caller K
commenced a union
grievance, shift
commanders told
Caller K to
``leave it
alone'' and
warned him that
he was ``playing
with fire.''
Thereafter, even
though Caller K
was qualified for
a promotion, the
position was
awarded to a
heterosexual
candidate from
``off the
street'' with
much less
experience than
Caller K. Caller
K eventually
resigned over his
treatment.
Caller L........................ State University.. CO................ 2007.............. Harassment;
discrimination in
terms and
conditions of
employment:
Professor at
State university
for more than two
decades, who has
long been open
about his being
gay, began to
experience
problems when the
former provost of
the university
retired. The dean
thereafter began
making derogatory
comments about
Caller L in
meetings,
including
referring to him
as a girl. Caller
L was then passed
over as chair of
his department in
favor of a
heterosexual
woman with much
less tenure, even
though Caller L
previously had
been the chair of
a related
department.
Caller L has also
been stripped of
graduate courses
that he has
taught for years
and has been
given only
undergraduate
courses to teach,
based on a false
claim that he did
not turn in his
lesson plans on
time.
----------------------------------------------------------------------------------------------------------------
______
Leadership Conference on Civil Rights,
Washington, DC 20006,
November 3, 2009.
Dear Member of Congress: On behalf of the Leadership Conference on
Civil Rights (LCCR), the Nation's oldest, largest, and most diverse
civil and human rights coalition, we urge you to become a cosponsor of
H.R. 3017/S. 1584, the Employment Non-Discrimination Act (ENDA). It is
time for Congress to act on this crucial civil rights legislation.
Our organizations are dedicated to the principle that every worker
should be judged solely on his or her merits. Hardworking Americans
should not be kept from supporting their families and making a positive
contribution to the economic life of our Nation because of
characteristics that have no bearing whatsoever on their ability to do
a job. Yet it remains legal in 29 States to fire or refuse to hire
someone simply because of his or her sexual orientation, and in 38
States it is legal to do so solely based on an individual's gender
identity. ENDA prohibits discrimination based on sexual orientation and
gender identity in most workplaces. The time has long since come to end
this injustice for gay, lesbian, bisexual and transgender Americans and
pass ENDA.
America's corporate leaders support ENDA's fair-minded approach.
Eighty-five percent of Fortune 500 companies have included sexual
orientation protections in their workplace policies and more than a
third of them also prohibit discrimination based on gender identity.
Corporate America is leading the way in workplace fairness.
Public support for ENDA is strong. A May 2008 poll conducted by
Gallup found that 89 percent of Americans believe gay men and lesbians
should have equal rights in the workplace. It is clear that Americans
know that ENDA represents a measured and pragmatic response to unjust
prejudice and discrimination.
We hope you will cosponsor and support this historic legislation.
Please feel free to contact Rob Randhava, LCCR Counsel, at 202-466-6058
if you have any questions.
Sincerely,
A. Philip Randolph Institute; Alliance for Retired Americans;
American Association for Affirmative Action; American Association
of People with Disabilities; American Association of University
Women; American Civil Liberties Union; American Federation of Labor
& Congress of Industrial Organizations (AFL-CIO;) American
Federation of State, County and Municipal Employees; American
Federation of Teachers; American Jewish Committee; American Speech-
Language-Hearing Association; Americans for Democratic Acton, Inc.;
Anti-Defamation League; Asian American Justice Center; Association
of Flight Attendants--CWA; B'nai B'rith International; Center for
Women Policy Studies; CenterLink: The Community of LGBT Centers;
Communications Workers of America; Disciples Justice Action
Network; Gay, Lesbian and Straight Education Network; Human Rights
Campaign; International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW); Japanese American
Citizens League; Jewish Council for Public Affairs; Lambda Legal;
Leadership Conference on Civil Rights; Legal Aid Society-Employment
Law Center; Legal Momentum; NAACP; National Asian Pacific American
Bar Association; National Association of Human Rights Workers;
National Association of Social Workers; National Center for Lesbian
Rights; National Center for Transgender Equality; National Council
of Jewish Women; National Disability Rights Network; National
Education Association; National Employment Law Project; National
Employment Lawyers Association; National Fair Housing Alliance;
National Gay and Lesbian Task Force Action Fund; National Stonewall
Democrats; Parents, Families and Friends of Lesbians and Gays
(PFLAG) National; People For the American Way; Pride At Work, AFL-
CIO; Sexuality Information and Education Council of the U.S.
(SIECUS); Union for Reform Judaism; Unitarian Universalist
Association of Congregations; United Church of Christ, Justice and
Witness Ministries; United Food and Commercial Workers
International Union; United Methodist Church, General Board of
Church and Society; Woodhull Freedom Foundation; and Women
Employed.
______
Marriott International, Inc.,
Washingon, DC 20058,
November 3, 2009.
Hon. Michael B. Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Dear Senator Enzi: As a lodging industry leader, Marriott
International, Inc. would like to express our support of the Employment
Non-discrimination Act (S. 1584) which would extend fair employment
practices under Federal law to gay, lesbian, bisexual and transgender
employees.
Marriott has implemented its own non-discrimination policy to make
our workplace values of fairness clear and transparent to our
employees. In the years since its implementation, the policy has been
accepted broadly, and we believe it has affected our bottom-line for
the better. Our gay, lesbian, bisexual and transgender employees feel
that they are equally protected and valued by the company. And it has
further reinforced for all of our employees that fairness and non-
discrimination remain fundamental in our workplace.
Businesses that drive away talented and capable employees are
certain to lose their competitive edge, an outcome that we must not
accept in this competitive global marketplace. That is why a majority
of FORTUNE 500 companies have already addressed these issues. We
believe that the Employment Non-Discrimination Act is an appropriate,
no-cost measure that will have a positive impact on our country's
ability to compete, by extending protection in the majority of U.S.
States where it remains legal to fire gay, lesbian, bisexual and
transgender employees.
Marriott strongly supports passage of the Employment Non-
Discrimination Act. The principles it fosters are consistent with our
company principles in treating all employees with fairness and respect.
We encourage Congress to move quickly and enact this important
legislation.
Sincerely,
David A. Rodriguez, Ph.D.
Executive Vice President, Global Human Resources.
______
National Center for Lesbian Rights (NCLR),
September 23, 2009.
Hon. Tom Harkin, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate.
Hon. Mike Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate.
Re: Crucial Protections For State And Local Government Employees under
ENDA
Dear Chairman Harkin and Ranking Member Enzi: On behalf of the
National Center for Lesbian Rights (NCLR), we are writing to provide
you with concrete information showing why it is critically important
that the Senate Committee on Health, Education, Labor, and Pensions
support the Employment Non-Discrimination Act (ENDA).
NCLR is a national legal organization committed to advancing the
civil and human rights of lesbian, gay, bisexual, and transgender
(LGBT) people and their families through litigation, public policy
advocacy, and public education. We provide assistance to LGBT and
gender non-conforming workers through our legal information helpline
and represent clients in employment matters at the claims and appeals
levels. We also provide technical advice and assistance to private
attorneys representing LGBT and gender non-conforming workers in
employment discrimination and harassment matters. NCLR was founded in
1977. Each year, through litigation, public policy advocacy and public
education, NCLR helps more than 5,000 LGBT people and their families
nationwide. Through this work, NCLR has acquired extensive knowledge of
the widespread pattern of discrimination against American workers who
are LGBT.
This letter will focus on one issue that ENDA would address:
discrimination by State and local governments against their employees
on the basis of sexual orientation and gender identity. The protection
that ENDA would provide is crucial to securing these employees'
constitutional rights and their ability to work in an environment that
is safe and respects their professional dignity as workers.
THERE IS A WIDESPREAD PATTERN OF UNCONSTITUTIONAL EMPLOYMENT
DISCRIMINATION AGAINST LGBT AND GENDER NON-CONFORMING EMPLOYEES
NCLR has observed a clear and widespread pattern of
unconstitutional employment discrimination against LGBT and gender non-
conforming employees. This pattern is not limited to any one State or
region, to any particular level of government, or to any type of
government agency. Our litigation docket has included cases against the
Utah Transport Authority, a Texas school district, and a California
public university. In recent years, we have also received dozens of
calls from State and local employees who were facing discrimination and
harassment in their workplace based on their sexual orientation and/or
gender identity and expression. We have received requests for help from
the western United States, New England, the South, including Florida,
and the Midwest. State and local agencies engaging in discrimination
have included a State department of health, a State department of child
support enforcement, county agencies, city government, and local and
county sheriff 's and police departments.
The discrimination and harassment faced by State and local
government workers who have called NCLR has been severe and blatant.
For example, one transgender woman worker in Florida was called a
``thing'' by her co-workers, and continuously harassed when she tried
to use the bathroom. Her supervisor was aware of the problem, but
refused to intervene. A lesbian worker in Georgia was humiliatingly
interrogated for 4 hours by her employer about her sexual preferences,
family life and personal acquaintances, then told not to speak about
what had been asked during the interview. She was subsequently
terminated.
DISCRIMINATION AGAINST LGBT AND GENDER NON-CONFORMING STATE AND LOCAL
EMPLOYEES PERPETUATES GENDER STEREOTYPES
Homophobic and transphobic harassment and discrimination against
employees has the clear effect, if not the intent, of reinforcing
gender stereotypes. In NCLR's experience, victims of discrimination and
harassment are often targeted as much for failing to conform to gender
stereotypes as for their actual sexual orientation or gender identity.
This goes against the basic and long-recognized principle that the U.S.
Constitution's guarantee of Equal Protection prohibits State
governments from acting in such a way as to perpetuate stereotypes
about how men and women are expected to behave. Craig v. Boren, 429
U.S. 190 (1976).
The relationship between gender stereotypes and discrimination
based on sexual orientation or gender identity is also clear from the
case law. For example, in Hamm v. Weyauwega Milk Prods., Inc., the
plaintiff 's co-workers called him ``girl scout,'' ``faggot,'' and
``bisexual'' and circulated a rumor that he and a male supervisor were
having a romantic relationship, despite the fact that he was in fact
heterosexual. 332 F.3d 1058, 1060 (7th Cir. 2003). The non-transgender
plaintiff in Doe by Doe v. City of Belleville, IL was harassed by co-
workers asking him if he was a ``boy or girl'' because he failed to
conform to gender stereotypes, in part by wearing an earring. 119 F.3d
563 (7th Cir. 1997).
DISCRIMINATION AGAINST LGBT AND GENDER NON-CONFORMING STATE AND LOCAL
EMPLOYEES IS UNDER-REPORTED
In NCLR's experience, LGBT and gender non-conforming State and
local employees face numerous barriers to reporting discrimination and
harassment in the workplace.
First, without explicit Federal protections, State and local
employees are not only vulnerable to discrimination, but are also less
likely to speak out about it or make complaints, out of fear of
retaliation by the employer and a lack of administrative or legal
recourse for such discrimination or retaliation. For example, a lesbian
worker in Arizona was repeatedly called a ``dyke'' and told she smelled
of ``s*** and p***'' by co-workers, with no intervention by her
supervisor. When she made a complaint to the EEOC, she was told this
was not considered sexual harassment and therefore that she had no
basis for a complaint. A gay male employee in Florida faced virulent
anti-gay comments from a colleague. When he complained to a supervisor,
he was reprimanded for making the complaint and subsequently
terminated.
In addition, the nature of the discrimination and harassment
against LGBT employees frequently includes an aspect of malicious
``outing'' or making public of their sexual orientation or transgender
status, and other private information. For such employees, making a
legal or administrative claim may lead to further unwanted publicity.
Many rightly fear that it would expose them to more, rather than less,
discrimination based on their sexual orientation or gender identity in
their community or at a subsequent employer. In one situation that NCLR
was contacted about, a police captain intentionally told a lesbian
worker's potential employer about her sexual orientation in an attempt
to prevent the worker from finding alternative employment, relying on
homophobic discrimination in the community generally.
PROTECTIONS AGAINST DISCRIMINATION BASED ON SEXUAL ORIENTATION AND
GENDER IDENTITY ARE ESPECIALLY IMPORTANT RIGHT NOW
In these difficult economic times, protecting LGBT and gender non-
conforming workers at State and local agencies from unfair treatment on
the job is more crucial than ever. Even in economically prosperous
times, transgender people in particular find it difficult to find
dignified work in a safe environment. In 2003, we conducted a joint
study with the Transgender Law Center and found that 79 percent of San
Francisco's transgender community made less than $50,000 a year, and
over 40 percent lacked health insurance. Trans Realities: A Legal Needs
Assessment of San Francisco's Transgender Communities, available at
http://transgenderlaw
center.org/trans/pdfs/Trans%20Realities%20Final%20Final.pdf. Under the
American Recovery And Reinvestment Act, an estimated $49 billion in
funds has been provided to State and local governments. It is critical
that LGBT and gender non-conforming workers have an equal shot at
getting and retaining the new jobs created by this funding.
For all of these reasons and others, we urge approval and passage
of ENDA. LGBT and gender non-conforming State and local employees must
have explicit and clear Federal statutory protections from and remedies
for workplace discrimination. Thank you for your time and for your
attention to the serious discrimination facing tens of thousands of
workers in the United States that passage of ENDA would address.
Sincerely,
Kathryn Kendell, Esq.,
Executive Director, National Center for Lesbian Rights.
Shannon Minter, Esq.,
Legal Director, National Center for Lesbian Rights.
Attachment 1.--Examples of Anti-LGBT Discrimination:
State & Local Employers
CALIFORNIA
Sulpizio and Bass v. San Diego Mesa College (local--community college
district/coach)
``Lorri Sulpizio was the Head Women's Basketball Coach at San Diego
Mesa College (Mesa), and her domestic partner, Cathy Bass, assisted the
team and served as the team's Director of Basketball Operations for
over 8 years. Despite Sulpizio's and Bass's dedication and demonstrated
track record of success leading the women's basketball program at the
community college, Mesa officials unlawfully fired both coaches at the
end of the 2007 academic year after Coach Sulpizio repeatedly advocated
for equal treatment of female student-athletes and women coaches, and
following publication in a local paper of an article identifying
Sulpizio and Bass as domestic partners.'' See NCLR, Employment Case
Docket: Sulpizio and Bass v. San Diego Mesa College, http://
www.nclrights.org/site/PageServer?pagename=issue
_caseDocket_sulpizio.
Bay Area School District (local--school district/teacher)
``One woman in particular stands out. She is a teacher who
transitioned in the Bay Area in the late 1990s. Since transitioning,
she has not been able to secure a full-time teaching contract in any of
the several school districts to which she has applied. Needing work,
she recently applied to an entry-level Federal job. After two days and
multiple hours of interviews and screening, she was turned down for the
position immediately after she disclosed her transgender status on a
comprehensive medical questionnaire.'' Shannon Minter & Christopher
Daley, Trans Realities: A Legal Needs Assessment of San Francisco's
Transgender Communities at 15 (National Center for Lesbian Rights &
Transgender Law Center, 2003), available at http://
transgenderlawcenter.org/trans/pdfs/Trans%20Realities%20Final%20Final
.pdf. [hereinafter Trans Realities].
CONNECTICUT
Conway v. City of Hartford (local--city/employee)
The plaintiff, a transgender man, was terminated by his city
employer after transitioning from female to male, and was not rehired
for another position although other city employees who had been
terminated around the same time were all rehired. Conway v. City of
Hartford, 1997 WL 78585 (Conn. Super. Ct.), 19 Conn. L. Rptr. 109 (Feb.
4, 1997), cited in Shannon Minter, Legal Dir., National Center for
Lesbian Rights, Representing Transsexual Clients: Selected Legal Issues
at 4 n.22 (2003), available at http://www.hawaii.edu/hivandaids/
Representing_Trans
sexual_Clients_Selected_Legal_Issues.pdf [hereinafter Minter,
Representing].
FLORIDA
Smith v. City of Jacksonville Correctional Inst., (local--city jail/
sergeant)
A transgender corrections officer with a stellar employment record
was terminated after the fact that she was transgender was made public
and a report mentioning her transgender status was circulated
throughout the city jail where she worked. Smith v. City of
Jacksonville Corr. Inst., 1991 WL 833882 (Fla. Div. Admin. Hrgs. 1991),
cited in Minter, Representing at 3 n.11.
Fishbaugh v. Brevard County Sheriff 's Dep't (local--country sheriff 's
dep't/employee)
A transgender deputy sheriff was forced to leave her job due to
unlawful employment practices by the sheriff 's department. Fishbaugh
v. Brevard County Sheriff 's Dep't, Order No. 04-103 (Fla. Comm'n on
Human Relations 2004), available at http://fchr.state.fl.us/fchr/
layout/set/print/content/view/full/2263), cited in NCLR, Cases
Recognizing Protection for Transgender People Under State Sex and
Disability Discrimination Laws (2008), available at http://
www.nclrights.org/site/DocServer/state_cases091004.pdf?docID=1203
[hereinafter NCLR, State Sex & Disability].
Mowery v. Escambia County Utilities Authority (local--county utilities
authority/utility service technician)
Employee suffered harassment based on the perception that he was
gay due to sex stereotyping (i.e. that Mowery ``was 40 years old, owned
a house, had a truck paid for, did not have a woman, and never
publicized his sexual escapades with women to his coworkers'') and his
supervisor retaliated against him when he complained. Mowery v.
Escambia County Utilities Authority, 2006 FL 327965, at *6 (N.D. Fla.
2006), cited in NCLR, Federal Cases Recognizing That Discrimination on
the Basis of Gender Non-Conformity and/or Transgender Status Is a Form
of Discrimination on the Basis of Sex at 3 (2006), available at http://
www.nclrights.org/site/DocServer/
fed_gender_nonconformity.pdf?docID=1202 [hereinafter NCLR, Federal Sex
Discrimination].
NEW JERSEY
DePiano v. Atlantic County (local--county/corrections officer)
A prison guard who cross-dressed in his private life was subject to
severe and pervasive harassment at work after the fact that he
sometimes cross-dressed was publicized, possibly by his supervisor, to
his coworkers as well as the inmates of the prison where he worked.
DePiano v. Atlantic County, 2005 WL 2143972 (D.N.J. 2005), cited in
NCLR, State Sex & Disability at 2.
NEW YORK
Martin v. New York State Dep't of Corr. Servs., (State--State
department of corrections/corrections officer)
Co-workers of gay corrections officer constantly directed offensive
and degrading sexual comments toward him, such as ``pervert,'' ``f
***ing faggot,'' ``c***-sucker,'' ``fudge-packer,'' and ``you gay
bastard,'' and left sexually explicit pictures in his work area and
written statements and pictures on the restroom walls, yard booths, his
time card and his interoffice mail. The officer was retaliated against
for filing complaints. Martin v. New York State Dep't of Corr. Servs.,
224 F. Supp. 2d 434 (N.D.N.Y. 2002) (noting that discrimination based
on a failure to conform to gender norms might be cognizable under title
VII), cited in NCLR, Federal Sex Discrimination at 4.
OHIO
Barnes v. City of Cincinnati (local--city/police officer)
Officer who had passed the examination required to be promoted to
sergeant and who was transitioning from male to female was singled out
and ``targeted for failure'' during probationary period for promotion
to sergeant because the officer was not masculine enough in behavior or
appearance. Barnes v. City of Cincinnati, 401 F.3d 729, 737 (6th Cir.
2005), cited in NCLR, Federal Sex Discrimination at 2.
Smith v. City of Salem, (local--city/firefighter)
After firefighter was criticized for appearing too feminine, he
informed his direct supervisor that he had gender identity disorder and
would be transitioning from male to female. Upper-level city management
devised a plan to terminate him for pre-textual reasons. After the
firefighter learned of the plan to terminate him, he retained counsel
and was retaliated against through selective enforcement of fire
department policies. Smith v. City of Salem, 378 F.3d 566, 573 (6th
Cir. 2004), cited in NCLR, Federal Sex Discrimination at 2.
PENNSYLVANIA
Bianchi v. City of Philadelphia (local--city/firefighter)
Lieutenant firefighter experienced severe harassment from co-
workers based on the perception that he was gay, including having feces
smeared on his belongings and receiving anonymous letters that
threatened him as well as his twin brother. After he complained, the
firefighter was placed in a desk job, told that he could not return to
firehouse duties until he had passed mental and physical exams, and was
never re-instated even after he was cleared to return to work. Bianchi
v. City of Philadelphia, 183 F. Supp. 2d 726, 735 (E.D. Pa. 2002),
cited in NCLR, Federal Sex Discrimination at 5.
TEXAS
Stephens v. Bloomburg School District (local--school district/teacher)
``NCLR and attorney Michael Shirk from the National Education
Association/Texas State Teacher's Association negotiated a settlement
on behalf of Merry Stephens, an award-winning teacher and basketball
coach with Bloomburg Independent School District in the small rural
community of Bloomburg, TX. Coach Stephens was honored as a ``Teacher
of the Year'' in 2004 and named ``Coach of the Year'' in 3 of her 5
years as head coach of the Lady Wildcats basketball team. During her
award-winning tenure, Coach Stephens led the team to district,
regional, and semi-State championships, breaking several school
district coaching records in the process. Stephens also received
excellent teaching evaluations throughout her tenure with the Bloomburg
Independent School District. In December 2004, the School Board
initiated proceedings to terminate Coach Stephens. The school board
president testified under oath that the board's decision to terminate
Coach Stephens was based on the personal anti-gay animosity of several
school board members. In exchange for Coach Stephens' agreement not to
pursue further legal action, the district agreed to pay Coach Stephens
a monetary settlement.'' NCLR, Employment Case Docket: Stephens v.
Bloomburg School District, http://www.nclrights.org/site/
PageServer?pagename=issue_caseDocket_stephens.
UTAH
Etsitty v. Utah Transit Authority (State--transit authority/bus driver)
``Despite her spotless employment record, Krystal Etsitty, a
transgender woman, was fired from her job as a public bus driver by the
Utah Transit Authority (UTA), solely because the UTA feared that
members of the public might be offended by Etsitty's transgender
identity. A Federal district court in Utah dismissed Etsitty's case,
holding that Federal laws prohibiting sex discrimination do not protect
transgender people. Etsitty appealed this decision to the Tenth Circuit
Court of Appeals, which ruled against her. NCLR, Lambda Legal, and the
ACLU filed an amicus brief supporting Etsitty's claim.'' NCLR,
Employment Case Docket: Etsitty v. Utah Transit Authority, http://
www.nclrights.org/site/PageServer?pagename=
issue_caseDocket_etsitty_v_utah_transit.
Attachment 2.--NCLR Litigation Involving Employment Discrimination
Against State/Local Government Employees
SULPIZIO AND BASS V. SAN DIEGO MESA COLLEGE
Lorri Sulpizio was the Head Women's Basketball Coach at San Diego
Mesa College (Mesa), and her domestic partner, Cathy Bass, assisted the
team and served as the team's Director of Basketball Operations for
over 8 years. Despite Sulpizio's and Bass's dedication and demonstrated
track record of success leading the women's basketball program at the
community college, Mesa officials unlawfully fired both coaches at the
end of the 2007 academic year after Coach Sulpizio repeatedly advocated
for equal treatment of female student-athletes and women coaches, and
following publication in a local paper of an article identifying
Sulpizio and Bass as domestic partners. NCLR and the law firms of Boxer
& Gerson, LLP and Stock Stephens, LLP are representing Coach Sulpizio
and Coach Bass in their lawsuit against San Diego Mesa College, and the
San Diego Community College District. Recent high profile title IX jury
verdicts and settlements at Penn State, California State University,
Fresno, and University of California, Berkeley have raised awareness
about systemic gender inequities and homophobia at major colleges and
universities. This case is a powerful illustration that similar
problems pervade the athletic departments of community colleges as
well.
ETSITTY V. UTAH TRANSIT AUTHORITY
Despite her spotless employment record, Krystal Etsitty, a
transgender woman, was fired from her job as a public bus driver by the
Utah Transit Authority (UTA), solely because the UTA feared that
members of the public might be offended by Etsitty's transgender
identity. A Federal district court in Utah dismissed Etsitty's case,
holding that Federal laws prohibiting sex discrimination do not protect
transgender people. Etsitty appealed this decision to the Tenth Circuit
Court of Appeals, which ruled against her. NCLR, Lambda Legal, and the
ACLU filed an amicus brief supporting Etsitty's claim.
STEPHENS V. BLOOMBURG SCHOOL DISTRICT
NCLR and attorney Michael Shirk from the National Education
Association/Texas State Teacher's Association negotiated a settlement
on behalf of Merry Stephens, an award-winning teacher and basketball
coach with Bloomburg Independent School District in the small rural
community of Bloomburg, TX. Coach Stephens was honored as a ``Teacher
of the Year'' in 2004 and named ``Coach of the Year'' in 3 of her 5
years as head coach of the Lady Wildcats basketball team. During her
award-winning tenure, Coach Stephens led the team to district,
regional, and semi-State championships, breaking several school
district coaching records in the process. Stephens also received
excellent teaching evaluations throughout her tenure with the Bloomburg
Independent School District. In December 2004, the School Board
initiated proceedings to terminate Coach Stephens. The school board
president testified under oath that the board's decision to terminate
Coach Stephens was based on the personal anti-gay animosity of several
school board members.
Attachment 3.--NCLR Helpline Contacts Involving Employment
Discrimination Against State/Local Government Employees, 2001-9
----------------------------------------------------------------------------------------------------------------
Year State Employer Description
----------------------------------------------------------------------------------------------------------------
2007................................. California............. School District........ School District fired
two openly gay women
claiming they violated
the dress code, but
they believe it was
because they were
openly gay.
2006................................. Georgia................ DFCS................... After other employees
complained about
working with her
because she was a
lesbian, caller was
subjected to a
humiliating and
invasive 4-hour
interrogation during
which she was asked if
she was a lesbian, who
looked after her
children, who she
lived with and who her
friends were. She was
then told not to tell
anybody else about
what happened during
the interview. Two
weeks later they
suspended her for
``alleged
misconduct''.
2001................................. Florida................ City government........ City government
employee told to
resign or he would be
outted as a cross-
dresser (he cross-
dressed in his own
time, outside of work
hours).
2004................................. California............. Unknown State Agency... Employee tried to
persuade agency to
provide DP benefits in
2002 (before
comprehensive
statewide RDP). This
caused conflict with
his boss and he was
put on administrative
leave and eventually
terminated.
2007................................. Tennessee.............. Women and Children's Caller came out to
Center. colleagues as lesbian
after she witnessed
them ridiculing a
lesbian client. They
then started harassing
her, including
questioning her
religious beliefs. She
was later terminated.
2004................................. Florida................ Police Department...... Police officer faced
harassment and was
terminated when he
came out as gay. He
was also arrested for
lewd and lascivious
conduct for telling a
street youth about
safer sex.
2001................................. Florida................ State Dept of Caller faced repeated
Agriculture. virulently anti-gay
comments from a
colleague. When he
complained, he was
told off for
complaining, and a
superior told him to
drop the complaint. He
refused and was
terminated shortly
after.
2001................................. Florida................ Florida Dept. of Health Caller's supervisor
said he would try to
rid the department of
gays. When caller
complained, he was
reprimanded for
complaining, and
eventually terminated
after a long period of
harassment at work.
2004................................. Florida................ Department of Caller cross-dressed
Corrections. outside of work. When
supervisors found out
they confronted him
about it and forced
him to resign.
2005................................. Florida................ Pinellas County Water Neighbor ousted him to
Quality. his supervisor. He was
eventually fired.
2001................................. Florida................ School District........ Teacher got good
evaluations until
school found out his
partner was a man,
then evaluations took
a downturn and his
contract was not
renewed.
2002................................. Florida................ Fire Department........ Openly lesbian
firefighter was
repeatedly passed over
for promotion while
less qualified
employees were
promoted. She was
eventually fired for
low test scores, even
though her scores were
in fact consistently
high.
2004................................. California............. County Employee........ Gay man faced
harassment and
isolation at work
causing him stress-
related health
problems. Although
California law had
sexual orientation
protections, he was
afraid that the county
and union would not
enforce the law.
2005................................. California............. University of Supervisor drew up
California at Davis. dress code
specifically targeting
one gay male employee,
prohibiting him from
wearing mid-length
pants. Supervisor also
forbade him from
bringing gay and
lesbian yellow pages
into the office.
2003................................. Florida................ Sheriff's Office....... Caller is MTF. Co-
workers kept using the
wrong pronoun when she
was out on patrol
(hence outing her to
anyone who could
hear). She complained,
but nothing changed.
When co-workers
started a rumor that
she was posing topless
on the Internet, she
resigned.
2008................................. Virginia............... Police Department...... Caller was harassed by
her captain and made
to work long shifts
without breaks. When
she applied to another
job, captain accosted
her future employer in
a restaurant and
announced that caller
was a lesbian.
2002................................. Florida................ School District........ Caller is MTF, was
called a ``thing'' by
co-worker, harassed
about which bathroom
she should use.
Supervisor did not
respect her either.
2008................................. Rhode Island........... Unknown State Agency... Caller faced
discrimination at
work, wanted attorney
information from us.
Not many details.
2002................................. Florida................ Fire Department........ Caller is gay.
Colleagues found his
personal on the
Internet and
circulated in the
office. His supervisor
wrote him up for
various frivolous
things and when
confronted admitted
they were made up.
2008................................. Ohio................... State of Ohio.......... Faced daily harassment
including threats and
intimidation because
of her sexual
orientation.
2007................................. Florida................ Unknown Agency......... Social worker had
worked there for about
10 years. When she
came out, supervisor
started giving her bad
reviews, and also
stood in the bathroom
with her while she
urinated for a drug
test (not standard
procedure).
2004................................. Florida................ School District........ Teacher who agreed to
let students use her
room for GSA meetings
was harassed by other
teachers to the point
where she felt she had
to leave. School then
refused to give her a
good recommendation.
2004................................. Louisiana.............. School District........ Bus Driver faced
harassment for gender
non-conformity and
sexual orientation.
Her grievance was
deemed invalid.
2007................................. Arizona................ Department of Child When she came out as a
Support Enforcement. lesbian, co-workers
started calling her a
``faggot'' and
``dyke'' and saying
she smelled of ``sh**
and pi**'' and saying
that she had STDs and
was mentally ill.
Supervisor did
nothing. Harassing co-
workers were
transferred to another
department, but no
other disciplinary
action was taken.
Harassment continues.
She filed with EEOC,
but was told that this
was not sexual
harassment.
2004................................. California............. School District........ Lesbian who did not fit
traditional gender
norms was repeatedly
transferred from site
to site and once
thrown against the
wall by a principal.
School district and
union refuse to
intervene.
2007................................. California............. Police Department...... Chief decided not to
promote caller to a
position she was
qualified for, and for
which no other
qualified person was
found, and instead
eliminated the
position, because
caller was MTF.
2002................................. Florida................ Board of Nursing (not Denied a nursing
employer). license because he was
gay, though they gave
other reasons (which
had not precluded
others from getting a
license). He had
already gotten
licensed in Indiana.
2007................................. Florida................ Sheriff's Office....... Caller was offered
positions at two
Sheriff 's offices
which were then
rescinded because they
found out he was
living with a man whom
they assumed was his
partner.
2006................................. Florida................ Police Department...... When police department
found out she was MTF,
they decided not to
hire her, claiming she
had been dishonest.
2002................................. Florida................ Fire Department........ Before coming out, got
excellent assessments
and was promoted.
After he came out, he
was told to either
resign or accept a
demotion. He took the
demotion to keep his
retirement benefits.
2006................................. New Jersey............. State of NJ............ She was demoted and
made to do menial
tasks below her skill
level because she was
a lesbian.
2005................................. North Carolina......... Medical Board (not an Transgender woman faced
employer). uncertainty about
whether she had to
declare that she was
trans in order to
proceed with
application.
2004................................. New York............... New York State Employee won at the
Department of Law. trial level, sought
help from us for an
appeal.
----------------------------------------------------------------------------------------------------------------
Nationwide Mutual Insurance Company,
Columbus, OH 43215,
November 5, 2009.
Hon. Tom Harkin, Chairman,
Senate Health, Education, Labor, and Pensions Committee,
428 Dirksen Senate Office Building,
Washington, DC 20510.
Hon. George Miller, Chairman,
House Education and Labor Committee,
2181 Rayburn House Office Building,
Washington, DC 20515.
Dear Chairman Harkin and Chairman Miller: I am writing on behalf of
Nationwide Mutual Insurance Company and our 36,000 associates to
express our proud support of Federal workplace non-discrimination
legislation, H.R. 3017/S. 1584, the ``Employment Non-Discrimination
Act.''
Nationwide is committed to fostering a workplace environment of
inclusiveness, respect, and non-discrimination. The Employment Non-
Discrimination Act (ENDA) would extend Federal protections against job
discrimination to gay, lesbian, bisexual, and transgender Americans.
This legislation would simply and fairly extend the fundamental right
to be judged on one's own merits, and without placing excessive burdens
on employers.
To help create a welcoming work environment for our associates,
Nationwide has implemented our own non-discrimination and harassment
policies that specifically state that we will not tolerate
discrimination or harassment of any associate based on sexual
orientation or gender identity. These policies are an important part of
our business objectives, including having a culture that embraces
diversity, recruiting the best talent, and competing in the global
marketplace.
The principles of ENDA are consistent with Nationwide's corporate
values of treating all of our associates with fairness and respect, and
we believe our policies of valuing diversity also bring financial
benefits to the workplace by encouraging full and open participation by
all of our associates.
On behalf of Nationwide and our associates, we thank you for your
leadership on the Employment Non-Discrimination Act. If we can answer
any questions or be of any help on this issue, please do not hesitate
to contact us or Meredith Mull of our Washington office at (202) 347-
5915.
Sincerely,
Stephen Keyes,
Vice President, Associate Relations & Human Resources Policy.
Candice Barnhardt,
Vice President, Diversity and Inclusion.
______
Parents, Families and Friends of
Lesbians and Gays (PFLAG) National,
Washington, DC 20036,
November 5, 2009.
Mr. Chairman and members of the committee: On behalf of Parents,
Families and Friends of Lesbians and Gays (PFLAG) National's more than
200,000 members and supporters, I am pleased to submit written
testimony expressing our support for the Employment Non-Discrimination
Act of 2009 and urge the Congress to support workplace fairness for all
Americans by addressing the issue of widespread employment
discrimination. I would like to especially thank Chairman Harkin along
with Ranking Member Enzi for convening the hearing, Employment Non-
Discrimination Act: Ensuring Opportunity for All Americans, before the
U.S. Senate Committee on Health, Education, Labor, and Pensions. It is
imperative that the committee explore employment discrimination as a
critical barrier to workplace fairness, and support the passage of ENDA
in an effort to guarantee workplace fairness for all Americans.
PROBLEM STATEMENT AND BACKGROUND INFORMATION
Every year, qualified, hard-working Americans are denied job
opportunities, terminated, or experience on-the-job discrimination just
because they are lesbian, gay, bisexual or transgender (LGBT). This
occurs in both public and private sector workplaces, both large and
small. Although all arbitrary discrimination is reprehensible,
workplace discrimination is especially egregious because it threatens
the well-being and economic survival of American workers and their
families. Often, LGBT employees attempt to protect themselves against
discrimination by hiding their sexual orientation or gender identity.
This requires carefully self-policing of even the most casual
conversations, and banishes almost all acknowledgment of family and
friends from the workplace. In addition to being difficult to do,
hiding one's sexual orientation or gender identity takes a terrible
psychological toll, and often results in co-workers building walls
between each other. In addition to the emotional stress inflicted on
LGBT employees, the necessary subterfuge and dishonesty works to
distance co-workers from one another, harming the workplace environment
and overall work products.
The threat of discrimination based on sexual orientation and gender
identity has a very real presence in American workplaces. I have met
countless parents, families and friends of LGBT people and have heard
too many tragic stories of LGBT employees being harassed, fired, not
hired, and passed over for advancement without regard to their merit.
That treatment would not be permissible if ENDA were law. A 2007 report
of more than 50 studies compiled by the Williams Institute indicates
that 16 to 68 percent of LGBT people reported experiencing employment
discrimination. In a separate survey, 15 to 57 percent of transgender
individuals reported experiencing employment discrimination. In
addition, many heterosexual coworkers reported witnessing sexual
orientation discrimination in the workplace. In another 2007 nationwide
survey, 28 percent of LGBT workers reported that they have experienced
discrimination or unfair treatment in the workplace; one-in-four said
they experience it on a weekly basis.
Studies also show that discrimination robs LGBT employees of the
ability to earn incomes equal to those of their heterosexual
counterparts. The 2007 Williams Institute report documented that gay
men earn 10 to 32 percent less than similarly-qualified heterosexual
men. A 2002 study showed that gay men earn from 11 to 27 percent less
and lesbians earn 5 to 14 percent less than the national average. And,
while no detailed wage and income analyses of transgender employees
have been conducted to date, the Williams study documented that
transgender people report high rates of unemployment and very low
earnings.
These wage studies confirm that LGBT discrimination is not benign.
Lower incomes and difficulty in getting and keeping a job create direct
and immediate financial disadvantages for LGBT employees, just as they
do for other American workers who are lucky enough to be protected by
Federal law. The National Commission on Employment Policies calculated
that discrimination against LGBT employees translated into a $47
million loss in profits attributable to training expenditures and
unemployment benefits alone. Not including outright terminations, it
has been proposed that hostile work environments cost companies $1.4
billion in lost output each year because of a reduction in LGBT
workers' productivity.
EMPLOYMENT PROTECTIONS SUPPORTING WORKPLACE FAIRNESS FOR ALL
ENDA is a Federal bill that would prohibit discrimination in the
workplace based on a person's sexual orientation or gender identity. It
would address discrimination in the workplace by making it illegal to
fire, refuse to hire, or refuse to promote an employee based solely on
that person's sexual orientation or gender identity. ENDA would make it
illegal for employers to discriminate on those bases, including, for
example, refusing to hire an applicant or firing an employee who is
lesbian, gay, bisexual, transgender, or heterosexual.
This legislation closely follows the model of existing Federal
civil rights laws, including Title VII of the Civil Rights Act of 1964,
and, therefore, would affect private employers with 15 or more
employees, as well as Federal, State, and local governments, unions,
and employment agencies. The U.S. military and certain religious
organizations would be exempt, as would employment issues such as
quotas, disparate impact claims and domestic partner benefits. The bill
defines sexual orientation as ``homosexuality, heterosexuality, or
bisexuality'' and gender identity as ``the gender-related identity,
appearance, or mannerisms or other gender-related characteristics of an
individual, with or without regard to the individual's designated sex
at birth.''
Why Is ENDA Needed?
In 29 States it is legal to discriminate based on sexual
orientation, and in 38 States discrimination based on gender identity
is legal. The lack of State and local protections exacerbate the
widespread discrimination that LGBT workers experience by all types of
employers, including private employers, local governments, State
governments, and companies large and small. These affected employees
have no adequate remedy in Federal law. ENDA would provide critically
needed job protections for the entire community--including those most
vulnerable to discrimination.
Only 12 States and the District of Columbia currently have laws
that specifically ban workplace discrimination based on sexual
orientation and gender identity. Another nine States have laws that ban
discrimination based on sexual orientation, but don't include gender
identity. This patchwork of laws is inadequate to prevent and remedy
the serious discrimination against LGBT employees that takes place
across the country.
ENDA is a comprehensive remedy to address the lack of protection
afforded to American LGBT workers. This legislation does not create
special rights; rather, it reflects a bedrock American principle that
working men and women should be judged solely on the basis of their job
performance. Specifically, ENDA:
Prohibits Employment Discrimination. Prohibits public and
private sector employers from making decisions about hiring, firing,
promotion or compensation based on sexual orientation or gender
identity. It applies only to discrimination in employment and only to
employers with 15 or more employees.
Prohibits Preferential Treatment. Strictly prohibits
preferential treatment based on quotas, and mandates that no claims
will be permitted based on statistics.
Includes Broad Exemptions. Exempts members of the Armed
Forces and veteran preference organizations, as well as religious
organizations or religious schools.
Excludes Domestic Partnership Benefits. Does not require
employers to provide benefits to domestic partners.
Who Supports ENDA?
In addition to significant bipartisan support in both the House and
Senate, most of America's leading businesses have adopted anti-
discrimination policies similar to ENDA. Business leaders understand
that a person's sexual orientation or gender identity has nothing to do
with their job performance. That is why 423 (85 percent) of Fortune 500
firms have extended protections based on sexual orientation and 176
(more than one-third) extended protections based on gender identity,
according to the Human Rights Campaign Foundation's 2009 Corporate
Equality Index (CEI). Moreover, 98 percent of the Fortune 50 prohibits
discrimination based on sexual orientation, and nearly 50 percent
prohibit discrimination based on gender identity.
The Business Coalition for Workplace Fairness, made up of some of
the largest corporations in America, has endorsed ENDA. Some of those
coalition members include: The Coca-Cola Company, General Motors
Corporation, Dow Chemicals, General Mills Inc., J.P. Morgan Chase &
Co., Marriott International, Microsoft Corporation, Morgan Stanley, and
Nike Inc. More than 30 major U.S. businesses joined this coalition
during the first 5 months of 2007.
Federal law has also been outpaced by the actions of State and
local leaders. Thirty-seven percent of the country--21 States and the
District of Columbia--have laws protecting lesbian, gay and bisexual
people from employment discrimination; 12 States and the District of
Columbia, along with more than 100 localities, have laws that also
protect transgender people. Without ENDA, employers are able to
discriminate against a segment of their workforce with impunity, unless
those workers are lucky enough to live in one of the few States or
localities that make such behavior illegal.
Not only does the Federal Government lag behind corporate America
and State and local policies, but it is also lags behind public support
for ENDA. A 2007 Gallup poll found that 89 percent of Americans believe
that lesbian and gay employees should have equal rights in the
workplace, and a 2007 Peter D. Hart Research Associates survey
indicated that 58 percent of respondents believe workplace protections
should also extend to transgender employees.
PFLAG'S UNIQUE ROLE
PFLAG promotes the health and well-being of lesbian, gay, bisexual
and transgender persons, their families and friends through: support,
to cope with an adverse society; education, to enlighten an ill-
informed public; and advocacy, to end discrimination and to secure
equal civil rights. PFLAG provides opportunities for dialogue about
sexual orientation and gender identity, and acts to create a society
that is healthy and respectful of human diversity.
As part of PFLAG's commitment to the health and well-being of LGBT
individuals, PFLAG supports efforts to eliminate barriers to workplace
equality, such as those that create employment discrimination. PFLAG
parents, families and friends, whose own loved ones endure workplace
discrimination, are striving to secure support for LGBT equality in
their local communities and workplaces through workplace trainings and
panel presentations. Working with corporate and community leaders,
volunteers, and diversity groups, PFLAG connects straight allies with
the mission and vision of LGBT equality by encouraging them to speak
up, educate other allies, and engage in the pursuit of equality. ENDA
represents a significant opportunity for the Congress to participate as
allies of all workers in ensuring an end to workplace discrimination.
In the past, Congress has had the vision and courage to enact laws
that ban employment discrimination based on other protected classes. We
now have a historic opportunity to expand the law to ensure that
everyone can enter and succeed in the workplace without regard to
sexual orientation or gender identity. We would again like to thank
Chairman Harkin and Ranking Member Enzi again for bringing much-needed
visibility to the problems of employment discrimination and the
terrible consequences that often result when left unchecked. We
encourage and welcome the committee to meet with PFLAG members and
supporters and staff in our national office who are committed to
supporting LGBT Americans who experience employment discrimination. I
believe their personal stories will be enormously helpful in your
efforts to make a difference in the lives of those who experience
employment discrimination.
Again, I thank you for holding this important and historic hearing
for the Employment Non-Discrimination Act of 2009. On behalf of all of
our members and supporters, I am grateful for your dedicated work in
helping foster workplace fairness for all Americans, including efforts
to address employment discrimination for LGBT employees. I urge the
Senate to take action and pass a fully inclusive ENDA, opposing any
motion to weaken this legislation. Should you have any questions
related to our support for this legislation, please be sure to contact
our Policy Manager, Rhodes Perry at (202) 467-8180 x 221 or
[email protected].
Sincerely,
Jody M. Huckaby,
Executive Director, PFLAG National.
______
Raytheon Company,
Waltham, MA 02451,
November 5, 2009.
Hon. Tom Harkin, Chairman,
Senate Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
cc: Hon. Michael Enzi, Ranking Member; Hon. Jeff Merkley
Dear Mr. Chairman: Thank you for the opportunity to contribute to
the dialogue regarding nondiscrimination policy related to
transgendered people. It is important to first understand the context
for this specific policy issue within Raytheon Company business.
Raytheon's fundamental and deeply held values are that of human
respect, diversity and inclusion. The company has strong and purposeful
senior leadership support for these issues. While Raytheon has indeed
received public recognition for its policies related to GLBT issues,
the underlying beliefs and resulting operating practices cover the
spectrum of human differences because this is driven by company values
and business mandate.
DIVERSITY AND INCLUSION JOURNEY AT RAYTHEON
With over 73,000 employees, Raytheon represents nearly every
demographic. Over the last decade the company has continued to grow the
business and increase its understanding of its people. During this
period, Raytheon has supported a number of employees who have
transitioned both their gender identity and sex. These valued and
highly contributing employees faced many challenges and we have found
that providing consistent support has led to increasingly dedicated
employees. We have also seen a genuine spirit of caring from fellow
employees resulting in increased company pride. In 2005, senior
management approved changes to enhance Raytheon's nondiscrimination
policy (namely gender identity and expression) to codify and prescribe
in writing what had hereto been practiced for a number of years prior.
Raytheon became the first major defense supplier to be awarded a 100
percent score by the Human Rights Campaign (HRC) on their Corporate
Equality Index (CEI). That recognition marked another milestone on
Raytheon's continuing journey of inclusion and strengthened our resolve
to nurture an environment where every employee can contribute to their
maximum for our customers.
THE BUSINESS CASE FOR ACTION
The most clear, relevant, and compelling business driver for
Raytheon's diversity and inclusion efforts, including GLBT issues,
relates to the impeding crisis of diminished talent availability,
especially in the Science, Technology, Engineering, and Math (STEM)
professions. Raytheon's business is highly technical and requires a
steady, significant supply of talented engineers to both sustain
existing business and to exploit the many available growth
opportunities. Hence, it is a competitive imperative that Raytheon have
unlimited access to every talent pool in order to survive as an
organization. Our business strategy requires us to retain our talented
workforce and enjoy disproportional success in attracting new talent.
Policies and practices that support the life realities of our people
are not only the ``right thing to do,'' but create an environment that
allows people to thrive. Ultimately, Raytheon's inclusive practices
result in employees that passionately work to ensure our customers'
success and support our country's war fighters.
Again, Raytheon's policy of inclusion for transgendered employees
is but a part of a larger picture. For example, Raytheon has recently
been named one of the ``Top 25 Best Places to Start a Career'' by
Business Week magazine. In 2007, Raytheon was awarded the Secretary of
Labor award for our compliance to fair and equitable treatment
practices. These and a number of other unsolicited accolades strengthen
Raytheon's brand image and, in conjunction with our innovative
technology and quality products and services, give our customers and
other stakeholders confidence and reassurance in our enterprise. This
is indeed a key element of Raytheon's sustainability.
PUTTING POLICY INTO PRACTICE
With senior management direction in place, the challenge became
operationalizing the policy direction and establishing consistent
practices across the large and complex Raytheon organization. To
facilitate this process we provided a set of broad guidelines and
frequently asked questions and answers to our managers and supervisors.
We leveraged the actual experiences of a number of our HR managers and
diversity leaders who had previously handled transitioning employees to
provide coaching to managers and employees facing these issues. Again,
Raytheon views this process as a journey of continuous learning and
improvement. We encourage our people to deal with each situation based
on the facts and circumstances at hand using the guidelines as a
starting point. Equally important, we encourage open dialogue with the
departments of employees who are in transition.
I trust this information is helpful to your deliberations.
Sincerely,
Hayward L. Bell,
Chief Diversity Officer.
______
November 5, 2009.
Re: Religious Organizations Letter in Support of the Employment Non-
Discrimination Act (S. 1584)
Dear Senator: On behalf of our organizations, representing a
diverse group of faith traditions and religious beliefs, we urge you to
support S. 1584, the Employment Non-Discrimination Act (ENDA). As a
nation, we cannot tolerate arbitrary discrimination against millions of
Americans just because of who they are. Lesbian, gay, bisexual and
transgender (LGBT) people should be able to earn a living, provide for
their families and contribute to our society without fear. ENDA is a
measured, common sense solution that will ensure workers are judged on
their merits, not sexual orientation or gender identity. We call on you
to pass this important legislation without delay.
Many of our sacred texts speak to the importance and sacred nature
of work--an opportunity to be co-creators with God--and demand in the
strongest possible terms the protection of all workers as a matter of
justice. Our faith leaders and congregations grapple with the
difficulties of lost jobs every day, particularly in these difficult
economic times. It is indefensible that, while sharing every American's
concerns about the health of our economy, LGBT workers must also fear
job security because of prejudice.
At the same time, as religious denominations and faith groups, we
deeply value our guarantee to the freedoms of faith and conscience
under the First Amendment. ENDA broadly exempts from its scope any
religious organization, thereby ensuring that religious institutions
will not be compelled to violate the religious precepts on which they
are founded, whether or not we may agree with those precepts. In so
doing, ENDA respects the protections for religious institutions
afforded by the First Amendment and Title VII of the Civil Rights Act
of 1964 while ensuring that lesbian, gay, bisexual and transgender
people are protected from baseless discrimination in the workplace.
We urge the Senate to pass the Employment Non-Discrimination Act
(S. 1584) and ensure that lesbian, gay, bisexual and transgender
Americans have an equal opportunity to earn a living and provide for
themselves and their families.
Sincerely,
African-American Ministers in Action, Alliance of Baptists,
American Friends Service Committee, American Jewish Committee,
Anti-Defamation League, B'nai B'rith International, Catholics in
Alliance for the Common Good, Clergy and Laity United for Economic
Justice (CLUE-LA), DignityUSA, Disciples Justice Action Network
(Disciples of Christ), Friends Committee on National Legislation,
Fortunate Families, Interfaith Alliance, Islamic Shura Council of
Southern California, Jewish Council for Public Affairs, Jewish
Reconstructionist Federation, Jewish Women International,
Metropolitan Community Churches, Muslim Advocates, Muslims for
Progressive Values, National Council of Jewish Women, National
Council of the Churches of Christ in the U.S.A, Presbyterian Church
(U.S.A.) Washington Office, Sikh Council on Religion and Education,
SCORE, Sisters of Mercy of the Americas, Institute Justice Team,
The Central Conference of American Rabbis, The Episcopal Church,
The Rabbinical Assembly, The United Synagogue of Conservative
Judaism, Union for Reform Judaism, Unitarian Universalist
Association, United Church of Christ Coalition for Lesbian, Gay,
Bisexual and Transgender Concerns, United Church of Christ, Justice
and Witness Ministries, United Church of Christ, Wider Church
Ministries, United Methodist Church, General Board of Church and
Society, Women of Reform Judaism.
______
Unitarian Universalist Association of
Congregations,
Washington, DC 20005.
Dear Senator: On behalf of the 1,050 member congregations in the
Unitarian Universalist Association, I urge you to support S. 1584, the
Employment Non-
Discrimination Act (ENDA) of 2009. ENDA is a necessary and important
step towards protecting people from unfair job discrimination and will,
if passed, make a profound difference in the lives of many individuals
and families. No one should have to endure discrimination in the
workplace because of their real or perceived sexual orientation or
gender identity.
In June 2007, our General Assembly--the highest policymaking body
in our Association--issued a statement calling us to support
legislation that prohibits employment discrimination based on sexual
orientation or gender identity. Our history of ministry to and with
bisexual, gay, lesbian and transgender persons has brought many
blessings to our community, but it has also brought a painful awareness
of how the unfair loss of jobs and benefits hurts individuals, families
and communities. Respect for the inherent worth and dignity of every
person is a core tenet of our faith, and we believe, as do most
Americans, that all people have the basic human right to perform their
chosen work and to be evaluated based on what they do, not based on who
they are or who they love.
Over 350 organizations from the civil rights, religious, and most
importantly the bisexual, gay, lesbian, and transgender communities
support S. 1584. An overwhelming majority of the most successful
American businesses also support ENDA by recognizing that even where
anti-discrimination policies exist, a strong Federal standard that
protects bisexual, gay, lesbian and transgender workers is absolutely
critical. Workplace security is particularly important for people who
do not conform to gender norms due to the widespread levels of under
and unemployment stemming from prejudice in hiring and retaining
transgender workers.
Please support S. 1584, the gender-identity inclusive Employment
Non-Discrimination Act and show your constituents that you stand for
fairness and equality for all.
Thank you.
In Faith,
Rob C. Keithan,
Director.
______
University of California, Los Angeles (UCLA),
Los Angeles, CA 90095-1476,
November 5, 2009.
Hon. Tom Harkin, Chairman,
Committee on Health, Education, Labor, & Pensions,
U.S. Senate.
Hon. Mike Enzi, Ranking Member,
Committee on Health, Education, Labor, & Pensions,
U.S. Senate.
Dear Chairman Harkin and Ranking Member Enzi: I write to you as a
longtime member of the faculty at both the UCLA Graduate School of
Education & Information Studies and the UCLA School of Law,
specializing primarily in Education Law and Policy. I am speaking only
on my own behalf, and nothing that I say should be viewed as
representing the university's position on these issues.
Throughout my years at UCLA, I have maintained ongoing contact with
the K-12 public schools. I served as Director of Teacher Education
(1993-1995), Special Counsel for the California Department of Education
(1988-1996), and the on-site Federal court monitor for the San
Francisco public schools (1997-2005). I also train future principals in
UCLA's Principal Leadership Institute (since 2000).
On the academic front, I am the author of the West casebook
Education and the Law, Second Edition (2009), and Beyond Our Control?
Confronting the Limits of Our Legal System in the Age of Cyberspace,
MIT Press (2001). I developed and taught the first and only course in
UCLA's education school devoted entirely to lesbian, gay, bisexual, and
transgender (LGBT) issues, and I have recently completed The Right to
Be Out in the K-12 Public Schools [hereinafter The Right to Be Out], a
book focusing entirely on LGBT-related legal and public policy issues
in education. It is scheduled to be published by the University of
Minnesota Press in 2010.
A WIDESPREAD PATTERN OF UNCONSTITUTIONAL EMPLOYMENT DISCRIMINATION
Although great progress is evident across a wide variety of fronts,
LGBT persons continue to face complex circumstances and significant
impediments, particularly in the legal and public policy arenas.
Nowhere is the situation more complex and more challenging than in the
K-12 public schools.
Indeed, disclosure of a person's sexual orientation or gender
identity in many K-12 institutions can still lead to the loss of
employment opportunities and the discrediting of one's professional and
personal standing in the same way that it did for most people in the
1950s and 1960s. All too often, LGBT educators today are confronted
with the message that they had better remain as closeted as possible.
If they do not heed this message, they can be made to feel so
uncomfortable by administrators, parents, or other members of the
school community that they choose to leave K-12 education.
Such mistreatment of employees by State and local governments
clearly violates the rights of LGBT educators under the U.S.
Constitution. As discussed further below, and as documented in the
attached excerpt from my forthcoming book, there continues to be a
widespread pattern of unconstitutional employment discrimination in
this context.
For example, a principled reading of current legal doctrine reveals
that--in our pluralistic society--all persons have a right to be open
regarding fundamental aspects of identity, personhood, and group
affiliation. Contextualizing this right to be ``out'' and reviewing its
development in the public sector today, it is evident that it reflects
a classic combination of First Amendment and Fourteenth Amendment
principles. It is both a right to express an identity and a right to be
treated equally as a result of expressing this identity. Stuart Biegel,
``Conceptualizing the Parameters of the Right to Be Out,'' Education
and the Law, Second Edition, American Casebook Series (St. Paul, Minn.:
West, 2009), 169-186.
Yet in research conducted for The Right to Be Out over the past 7
years, I have found that K-12 educators still face ``a combination of
subtle pressure and express admonition that together limit their
ability to be open about who they are. And too often such limitations
continue to be reflected in job placement and promotion decisions that
favor educators whose sexual orientations and gender identities appear
to conform to mainstream norms. Public school educators may have the
right to be out under the law, but in day-to-day educational practice--
and particularly in certain communities--that right may be severely
curtailed.''
Since there is overwhelming consensus today in both the research
literature and in reported judicial decisions that sexual orientation
and gender identity are not related in any way to job performance in K-
12 schools, adverse employment action based on actual or perceived LGBT
status is nothing less than irrational under Fourteenth Amendment
jurisprudence.
In addition, it must be noted that there is much more employment
discrimination against LGBT education employees than the reported cases
and administrative complaints would indicate, because so many still
fear the consequences of disclosing their identities, seek to cover
their identities, and/or have faced administrative agencies and courts
that have been hostile to their claims.
MULTIPLE AND INTERRELATED LEVELS OF DISCRIMINATION OVER TIME
Discrimination against LGBT education employees continues to occur
at every level of government, local, State, and Federal. It is linked
inextricably to a history of purges of actual and perceived LGBT public
employees, a history of State laws specifically prohibiting LGBT
persons from teaching, State licensing requirements that included
morality fitness tests that were interpreted to exclude LGBT employees,
State laws criminalizing consensual same-sex relations, and judicial
decisions contemptuous of LGBT persons and cruelly dismissive of their
core human characteristics.
The public record over the past 50-75 years is filled with examples
of local discriminatory treatment of gay and gender non-conforming
teachers that is grounded not only in a history of State discrimination
but in individual State laws themselves. See generally E. Edmund
Reutter, Jr., The Law of Public Education, Fourth Edition (New York:
Foundation Press, 1994) at Page 657.
These realities are documented in three widely reported and highly
publicized decisions focusing on teacher licensing at the State level:
the Acanfora case out of Maryland, the Morrison case out of
California, and the National Gay Task Force case out of Oklahoma.
Acanfora v. Bd. of Educ. of Montgomery County, 491 F. 2d
498 (1974). In Acanfora, State law impacted the plaintiff teacher's
career on three interrelated levels, his ability to complete his
education in the teacher training program after it was learned that he
was the treasurer of a gay student organization at Penn State, his
ability to get a license to teach because of his openness regarding his
sexual orientation, and his ability to retain his job once Montgomery
County school officials learned of his gay identity.
Acanfora was removed from his classroom and assigned to an
administrative job after the District discovered his former membership
in the Penn State student organization. He sued for re-instatement, but
in the subsequent trial, the judge accepted the school board's argument
that Acanfora was terminated not because of his homosexuality but
because he had not included his membership in the gay organization on
his employment application. Moreover, while the Court found the school
board's policy of not knowingly employing LGBTs objectionable, it
determined that the publicity about Acanfora's homosexuality, including
his vigorous self-defense, was ``likely to produce imminent effects
deleterious to the educational process'' and thus justified the school
board's dismissal. The Fourth Circuit Court of Appeals affirmed the
lower court decision on behalf of the District.
Morrison v. State Bd. of Educ., 461 P.2d 375 (Cal. 1969).
As discussed in more detail below in the attached chapter, Marc
Morrison was a fully credentialed educator in southern California with
an unblemished record. During one week in early 1963, he and a fellow
male colleague ``engaged in a limited, non-criminal physical
relationship.'' After this fact was discovered, Morrison was apparently
pressured to resign from the District, and the State Board of Education
followed by revoking his teaching credential, a revocation that
Morrison chose to contest openly. He lost in the lower court, but
finally prevailed in the California Supreme Court, 5 years after his
life had been completely torn apart by the loss of his job and the
stigma accompanying the resulting series of events.
Morrison never claimed to be gay, never asserted any rights under
either the 1st or Fourteenth Amendments, and never argued that he was
being discriminated against in any way. His entire argument, which
ultimately carried the day, was that what he had done did not warrant
revocation of his teaching credential because it had nothing to do with
his fitness to teach.
Nat'l Gay Task Force v. Bd. of Educ., 729 F.2d 1270 (10th
Cir. 1984). Immediately after Proposition 6--the 1978 Briggs Initiative
documented in the recent film Milk--failed to pass in California.
Oklahoma State Senator Mary Helm introduced a bill with similar wording
that passed overwhelmingly. The Oklahoma law provided that K-12 public
school teachers could be fired or suspended for ``public homosexual
activity,'' broadly defined as including ``advocating . . . homosexual
activity in a manner that creates a substantial risk that such conduct
will come to the attention of school children or school employers.''
The law remained on the books for years, disrupting the lives of LGBT
educators in dramatic and draconian ways. In 1982, in fact, it was
upheld in its entirety by the lower court in the Western District of
Oklahoma.
Finally, in 1984, the Tenth Circuit Court of Appeals struck down
portions of the law relating to ``advocacy'' as overbroad and violative
of the First Amendment. But by that time, for many people in a variety
of troubling circumstances, lives had been transformed, outstanding
teachers had left the State, and things would never be the same.
It should be noted that even as the Oklahoma case was reaching the
Tenth Circuit in 1983, the West Virginia Attorney General issued an
opinion for his State holding that gay and lesbian teachers could be
fired by their districts under a State law that authorized school
officials to fire teachers for ``immorality.'' 60 W. Va. Op. Atty. Gen.
46, 1983 WL 180826 (W.Va.A.G.), Office of the Attorney General State of
West Virginia, *1, February 24, 1983. He stated that homosexuality was
immoral in West Virginia even though the State had decriminalized
consensual same-sex relations in 1976, and while he wrote that
homosexuality must be shown to affect the person's fitness to teach, he
concluded that this could be shown if the teacher was ``publicly known
to be homosexual''. Ibid.
HOSTILITY OF THE COURTS
The pervasive level of discrimination and indeed contempt
documented in the previous pages is reflected not only in the statutory
schemes of the past five decades and in the attendant statements by
public officials but also in the writings of judges at every level of
the judicial system. See, e.g., Jack M. Balkin, ``The Constitution of
Status,'' 106 Yale Law Journal 2313, 2316-2320 (1997) (seeking to
provide both an historical and a cultural context for the various
opinions in Romer v. Evans, 517 U.S. 620 (1996)). See also Robert G.
Bagnall, ``Burdens on Gay Litigants and Bias in the Court System:
Homosexual Panic, Child Custody, and Anonymous Parties,'' 19 Harvard
Civil Rights--Civil Liberties Law Review 497, 515-46 (1984) (focusing
primarily on State court rulings in its analysis of the challenges
faced by gay and lesbian parents who wished to maintain custody of
their children during the decades following World War II); Barbara
Ponse, Identities in the Lesbian World: The Social Construction of Self
(Westport, Conn.: Greenwood Press, 1978) (analyzing the extent to which
a lesbian identity during this era could be seen as shaped by the
widely prevalent stigma that so many faced).
An opinion written by former Chief Justice Warren Burger, while
serving on the U.S. Court of Appeals for the D.C. Circuit in 1965,
exemplifies the legal and public policy terrain of the era.
Rejecting the argument of a gay plaintiff that his sexual
orientation should not disqualify him for employment, Burger dismissed
``homosexuals'' as ``sex deviates'' who suffer from infirmities
analogous to those of chronic alcoholics and former felons. Scott v.
Macy, 349 F.2d 182, 190 (D.C. Cir. 1965) (Burger, J., dissenting).
See also Laura S. Fitzgerald, ``Towards A Modern Art of Law,'' 96
Yale Law Journal 2051 (1987), written in the aftermath of Bowers v.
Hardwick, 478 U.S. 1039, the 1986 U.S. Supreme Court decision that
upheld the constitutionality of a Georgia statute criminalizing
consensual sodomy between adults. In the article, Fitzgerald documents
the legal terrain faced by LGBT persons in the post-World War II era,
and highlights decisions that exemplified the State of the law during
that 40-year period.
In addition to the decisions referenced above, examples of
consistent and ongoing hostility toward LGBT litigants--and
particularly toward gay and gender non-
conforming teachers at the State court level--include the following
cases out of Washington and New Jersey.
Gaylord v. Tacoma School Dist. No. 10, 88 Wash.2d 286, 559
P.2d 1340 (en banc) (1977). Among the State court opinions cited by
Professor Fitzgerald was the Washington State Supreme Court decision in
Gaylord, which upheld the dismissal of a veteran public school teacher
from his position when his openly gay identity became known in 1972. 96
Yale Law Journal at 2055, n. 19. The lower court had concluded that
despite an impeccable 12-year teaching record, James Gaylord was
``properly discharged for immorality because he was homosexual, and as
a known homosexual, his ability and fitness to teach was impaired with
resulting injury to the school.'' The State supreme court, in a lengthy
discussion of immorality, found that homosexuality was indeed immoral,
relying in part on a definition from the 1967 edition of the New
Catholic Encyclopedia. The Court concluded that for this reason alone,
public knowledge of his gay identity impaired his ability to teach and
thus he could indeed be discharged.
Over 30 years later, this case is still on the books, and although
it may come to be viewed as having been repealed by the State's 2006
law prohibiting discrimination on the basis of LGBT status, it has not
been expressly overruled. Indeed, it is still included in a major
textbook written by legal experts that has been used by education
schools and future school site administrators across the country. See
Kern Alexander & M. David Alexander, American Public School Law, Sixth
Edition (2005) at Pages 703-706 (identifying the Gaylord decision as an
example of the assertion that ``[the] homosexuality of [a] teacher is
immorality justifying dismissal'').
Gish v. Bd. Of Educ., 145 N.J. Super. 96 (1976). A
similarly notorious case from the same era involved the horrific
treatment of New Jersey high school English teacher John Gish, who was
ordered by the school board to undergo a psychiatric examination when
they learned about his activism on behalf of gay and lesbian
communities. Gish had played a key role in organizing the Gay Teachers
Caucus of the National Education Association (NEA) in 1972, and he was
also active in the Gay Activists Alliance, staging public events to
increase awareness of discrimination.
When Gish refused, the board removed him from his teaching duties
and prohibited him from having any contact with students or graduates.
In 1976, the Superior Court of New Jersey upheld the school district's
order that Gish undergo a psychiatric examination, ruling that the
teacher's ``actions in support of `gay' rights displayed evidence of
deviation from normal mental health.''
RECENT DEVELOPMENTS AND PROGNOSIS
Over the past 15-20 years, LGBT persons have won major victories
both in the courtroom and in State legislatures. Yet it is still the
case that employment discrimination directed against them is widely
prevalent.
With regard to litigation, it is important to recognize that while
the courtroom victories have increased, not every LGBT educator has
been victorious in this context. See, e.g., Schroeder v. Hamilton
School District, 282 F.3d 946 (7th Cir. 2002) (a devastating defeat for
a veteran Ohio teacher with an impeccable record who was badly
mistreated by students, parents, and school officials after he came out
as gay); Milligan-Hitt v. Board of Trustees of Sheridan County School
Dist. No. 2, 523 F.3d 1219 (10th Cir. 2008) (concluding that a rural
Wyoming school district's demotion of two principals who were living
together as a lesbian couple was not discriminatory under the law that
existed at the time, even in light of the acknowledged anti-gay animus
presented into evidence). And it cannot be emphasized strongly enough
that even when plaintiffs do prevail in the courtroom, the process is
inevitably accompanied by massive disruptions in people's lives, loss
of jobs, loss of stature in the community, the development of physical
and/or psychological maladies, and changes in circumstance that cannot
simply or easily be rectified by the legal victories.
With regard to legislation, it certainly must be acknowledged that
a growing number of States and municipalities have begun the process of
expressly prohibiting LGBT-related employment discrimination. As of
July 2009, 12 States plus the District of Columbia explicitly prohibit
workplace discrimination on the basis of both sexual orientation and
gender identity. They include California (1992, 2003), Colorado (2007),
District of Columbia (1977, 2006), Illinois (2006), Iowa (2007), Maine
(2005), Minnesota (1993), New Jersey (1992, 2007), New Mexico (2003),
Oregon (Jan. 2008), Rhode Island (1995, 2001), Vermont (1991, 2007),
and Washington (2006). In addition, 9 other States prohibit workplace
discrimination on the basis of sexual orientation alone: Connecticut
(1991), Delaware (2009), Hawaii (1991), Maryland (2001), Massachusetts
(1989), Nevada (1999), New Hampshire (1998), New York (2003), and
Wisconsin (1982).
These anti-discrimination laws have made a significant difference,
but after all this time, they have been introduced and passed in less
than half the States. And even in States that have them, precise
prohibitions are inconsistent, cultural norms are difficult to change,
and local enforcement of the laws may be lax. Discrimination may be
subtle and difficult to pinpoint, such as when people are passed over
for promotion but never told why. Also, the hesitancy of many
individuals to come out because of the persistence of discriminatory
attitudes and practices enables State and local government officials to
continue the discrimination because no one may ever complain.
In sum, for all the aforementioned reasons, a strong and
overarching Federal Employment Non-Discrimination Act--with powerful
and effective enforcement mechanisms--is vitally necessary to make it
clear that such discrimination is abhorrent and is no longer acceptable
in this country.
Sincerely,
Stuart Biegel.
Attachment
Chapter 3.--Ongoing Complexities Facing LGBT Educators: Rights on
Paper, but Persistent Challenges in the Legal and Public Policy Arenas
For LGBT teachers and school site administrators, the realities are
perhaps even more complex than those that exist for gay and gender non-
conforming youth. The history of public education in this country is
filled with examples of K-12 educators who were excluded from
employment initially or in fact lost their jobs when it was discovered
that they were lesbian, gay, bisexual, and/or transgender.\1\ And as
recently as 1978, California Proposition 6 (The Briggs Initiative)
sought to completely bar ``homosexuals'' from teaching in the State's
public schools.\2\
Indeed, the Briggs Initiative campaign was not that far removed in
time from the post-World War II era of pervasive government-sanctioned
harassment, vilification, and brutalization of gays. In his extensive
documentation of the cultural and historical forces that accompanied
the anti-gay activity on the part of law enforcement officials, David
Sklansky explained that related policies and practices ``lasted well
into the 1960s:''
Along with the Red Scare, the Lavender Scare quickly spread
outward from investigations of government officials to embrace
many other sectors of American life. Private businesses,
particularly those hoping to sell goods or services to the
government, began widespread screening and surveillance of
their employees to ferret out homosexuals. School teachers,
local government employees, and university professors came
under scrutiny for their sexual practices and inclinations.\3\
Sklansky emphasized that ``[g]ay men and lesbians remained objects
of fear, ridicule, and contempt'' throughout the decade that has come
to be associated with an entire panoply of ``rights'' movements. He
told of a 1966 Time Magazine essay on The Homosexual in America, for
example, in which the editors concluded that homosexuality was ``a
pernicious sickness'' and ``a pathetic little second-rate substitute
for reality'' that deserved ``no encouragement, no glamorization, no
rationalization, [and] no fake status as minority martyrdom.'' The
essay, Sklansky wrote, ``warned that mainstream values were under
`vengeful, derisive' attack from `[h]omosexual ethics and esthetics';
in some areas of the arts, `deviates' were `so widespread' they
sometimes appeared `to be running a kind of closed shop.' '' \4\
In 1978, only 12 years after the Time Magazine essay, many
Americans still shared a similar mind set, and the Briggs Initiative
was seen by large numbers of registered voters as a logical response to
the emergence of the gay rights movement and the attendant coming out
of gays and lesbians across the country.
Supreme Court Justice Antonin Scalia, dissenting in Lawrence v.
Texas (2003), aligned himself unapologetically with the thinking behind
the 1978 Initiative when he insisted that ``[m]any Americans do not
want persons who openly engage in homosexual conduct as partners in
their business, as scoutmasters for their children, as teachers in
their children's schools . . .'' Two other members of the Court at the
time, Chief Justice Rehnquist and Justice Thomas, joined in Scalia's
opinion. And while the L.A. Times reported in 2004 that ``[a]lmost 7 in
10 Americans know someone who is gay or lesbian and say they would not
be troubled if their elementary school-age child had a homosexual
teacher,'' and while 61 percent in the same poll said that ``a
homosexual would make a good role model for a child,'' \5\ the Pew
Research Center found in 2007 that 28 percent of Americans still agree
with the goals of the Briggs Initiative and believe that school boards
``should be able to fire'' teachers who are known to be gay.\6\
The complex and highly nuanced nature of this area is reflected in
additional noteworthy findings from the Pew Survey. For example, in the
20 years that Pew had been tracking this issue, the percentages of
people who would support firing gay and lesbian teachers for no reason
other than their sexual orientation dropped from 51 percent in 1987 to
under 30 percent for the first time in 2007. And while such firing
gains support from 38 percent of those who do not have ``close friends
or family members who are gay,'' the support level drops to 15 percent
for those who do have such a level of contact with LGBTs. In addition,
geography is clearly a factor in this context. Pew found that
``[p]eople living in the south (37 percent) are less likely to know gay
people well than are people living in the Northeast or West, and people
living in rural areas (34 percent) are less likely to say so than those
in urban or suburban areas.'' \7\
In sum, recent poll data and national survey results continue to
support the conclusion that there has been a significant positive
change in the attitudes of Americans toward LGBT educators. However, it
remains the case that substantial percentages of people--particularly
in certain regions and in rural areas--continue to oppose the idea that
LGBT educators would even be hired to teach their children. After all
the progress that has been made, the number of people who oppose
allowing gays and lesbians to teach even at the college and university
level is as high as 20-25 percent in certain parts of the country.\8\
And despite the positive correlation between knowing gay people well
and support for them in this context, a full 15 percent of those ``who
have a close friend or family member who is gay'' would still support
firing them from teaching jobs for no reason other than their sexual
orientation. With regard to transgender teachers, all evidence points
toward the fact that opposition to their being brought in to teach at
any level is even higher yet.
In light of these realities, K-12 educators are still confronted
with a combination of subtle pressure and express admonition that
together limit their ability to be open about who they are. And too
often such limitations continue to be reflected in job placement and
promotion decisions that favor educators whose sexual orientations and
gender identities appear to conform to mainstream norms. Public school
educators may have the right to be out under the law, but in day-to-day
educational practice--and particularly in certain communities--that
right may be severely curtailed.\9\
A key distinction between K-12 educators and K-12 students in this
regard is the difference in their respective roles. Teachers and school
site administrators are expected to build academic skills and impart
knowledge, subject to relevant State standards and curricular
frameworks. They may be delegated with the responsibility of imparting
certain values that are contained in statutory or policy guidelines,
but beyond these guidelines they are generally prohibited from seeking
to persuade students to adopt particular political, religious, or
social points of view. Yet while public school educators cannot feel as
free as their students might feel to speak about their own lives,
identities, and personal perspectives, neither must they feel that they
have to keep their identities to themselves. Within the parameters of
their designated roles, they have the same right to be out regarding
fundamental aspects of identity, personhood, and group affiliation as
their straight counterparts.
This openness, however, is not without its limits. Most courts
recognize that teachers are not automatons and have a right to be open
about who they are, but at the same time it is generally agreed that
under First Amendment principles
K-12 teachers should not be indoctrinating their students. While the
courts have not provided a precise test for indoctrination, the First
Circuit Court of Appeals recently set forth the contours of relevant
guidelines in this area. The Court concluded, under applicable
precedent, that if it is assumed ``that there is a continuum along
which an intent to influence could become an attempt to indoctrinate,''
factors to consider would include whether the alleged indoctrination
was ``systemic,'' whether students were ``required . . . to agree with
or affirm'' a particular idea, and whether they were ``subject to a
constant stream'' of similar content.\10\
The chapter begins by examining the range of First Amendment
guidelines that govern freedom of expression for public employees in an
education setting, documenting the types of settings and interactions
that may present themselves and how rights may vary depending on such
circumstances. It then turns to the Fourteenth Amendment, which
provides the central foundation for prohibitions against employment
discrimination in the public sector. After exploring the results of
noteworthy litigation in this context, the chapter analyzes the impact
of other legal developments that have further bolstered the right to be
out for K-12 public school educators. Finally, the chapter turns to a
case study of LGBT educator mistreatment that demonstrates how much
work still needs to be done before day-to-day realities unfold in a
manner consistent with these legal developments.
FIRST AMENDMENT RIGHTS OF EDUCATORS
As the U.S. Supreme Court explains in the Tinker decision, neither
students nor teachers shed their constitutional rights to freedom of
expression at the schoolhouse gate. First Amendment rights are
explicitly made available to public school teachers and school site
administrators, subject to specific limitations that arise out of the
``special characteristics of the school environment.'' \11\
Basic Rules From Case Decisions: Pickering, Connick, and Ceballos
In the 1968 case of Pickering v. Board of Education of Township
High School District No. 205, the U.S. Supreme Court directly addressed
the free speech rights of public school educators. Teacher Marvin
Pickering brought a lawsuit challenging the school board's decision to
dismiss him for sending a letter to a local newspaper expressing
concern over a proposed tax increase and criticizing the way in which
the board and the superintendent had addressed budget issues in the
past. In its defense, the school board contended that the dismissal was
justified because Pickering's letter was ``sufficiently critical in
tone'' to result in interference with ``orderly school
administration,'' and because some of the statements in the letter were
actually false.\12\
The Court ruled in favor of the teacher, finding that the
statements were ``in no way directed towards any person with whom
[Pickering] would normally be in contact in the course of his daily
work as a teacher,'' and that there were therefore no issues regarding
either the maintaining of discipline or interfering with ``harmony
among coworkers.'' As to the apparent falsehood of some of the remarks,
the Court found that ``absent proof of false statements knowingly or
recklessly made,'' a teacher may not be dismissed for exercising his
``right to speak on issues of public importance.'' Indeed, the Court
concluded that on matters of ``legitimate public concern'':
[F]ree and open debate is vital to informed decisionmaking by
the electorate. . . . [I]t is essential that [teachers] be able
to speak out freely . . . without fear of retaliatory
dismissal.\13\
Thirteen years later, in 1983, the Supreme Court revisited its
decision in Pickering when it considered the scope of a public
employee's free speech rights outside of an education setting. In the
case, Connick v. Myers, an assistant district attorney in New Orleans
was terminated from her position after distributing a questionnaire
soliciting the views of her fellow staff members on such matters as
transfer policy, office morale, and level of confidence in supervisors.
Ruling for the employer, the Court found this situation to be different
from that in Pickering because the distribution of the questionnaire
was the equivalent of speaking ``not as a citizen upon matters of
public concern, but instead as an employee upon matters only of
personal interest.'' \14\
The Court examined the First Amendment rights of public employees
again in the 2006 case of Garcetti v. Ceballos, ruling by a vote of 5-4
against a deputy district attorney who claimed he had been reassigned
and denied promotion as a result of internal memos he had written to
his supervisor.\15\ In the memos, he complained that a search warrant,
central to a case he was prosecuting, contained numerous inaccuracies
and reflected shoddy work by law enforcement officials. The Court
looked primarily to Pickering and Connick, and distinguished the fact
pattern from that in Pickering by noting that in this case ``the
controlling factor . . . is that his expressions were made pursuant to
his duties as a calendar attorney'' and concluding that in such a
context he did not have First Amendment protection. ``We hold,''
Justice Kennedy wrote, ``that when public employees make statements
pursuant to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution does not
insulate their communications from employer discipline.'' \16\
While the Ceballos decision was controversial and the subject of
much criticism, basic principles derived from Pickering and Connick
appear to have been affirmed. And to the extent that this decision can
be construed as applying to K-12 teachers who ``make statements
pursuant to their official duties,'' it must be noted that teachers
have always been faced with the fact that their freedom of expression
rights are most limited when they are speaking in a formal classroom
setting. In addition, the Ceballos opinion explicitly identifies a
distinction between teacher speech and that of a Deputy District
Attorney writing an internal memo, expressly mentioning teaching as an
area where ``some expressions related to [the] job'' are in fact
granted First Amendment protection.\17\
Under Pickering, Connick, and Ceballos, then, educators appear to
have the greatest freedom of expression when they seek to communicate
their views outside of the formal ``work'' environment and on matters
of public concern. Such expression would likely merit the highest level
of First Amendment protection. But the case decisions should not be
construed as limiting K-12 educators' free speech rights to such
situations alone. Pickering, read together with the aforementioned
language in Tinker, stands for the unequivocal recognition of broad
First Amendment rights for educators.\18\
Discerning Rules for Different Types of K-12 Educator Expression
While Federal courts in different parts of the country have not
always applied the Pickering and Connick rulings in a consistent
fashion, a consensus appears to have emerged in most places regarding
allowable restrictions on the ``speech'' of K-12 educators.\19\
In a formal classroom setting, the fundamental guiding principle is
that educators are expected to keep to the curriculum and confine their
comments to the facilitation of goals and objectives linked to State-
adopted content standards and reflected in approved instructional
materials. However, most courts have recognized that educators cannot
realistically be expected to keep to a script in the classroom.\20\
They must necessarily have the freedom to adjust their presentations
according to the needs of their students, the circumstances of the
class environment, and how a given lesson might be unfolding. In
particular, teacher comments during learning activities and class
discussions are inevitably shaped by student comments. The best
teachers at the K-12 level rarely follow a lesson plan so rigid that
they will be saying the same thing no matter what the students say or
no matter how the activity is unfolding.
Outside of a formal classroom setting, of course, circumstances can
be very different. While some courts, even during this era, appear to
convey the impression that teacher comments to students must be limited
to curriculum matters or to basic supervisory instruction, most have
recognized that limitations of this type are neither realistic nor
practical. Nor would such a restrictive approach reflect what actually
transpires in schools and communities on a day-to-day level. Even apart
from the counseling role that teachers are expected to play in most
jurisdictions, teachers and students do chat and do communicate about
things other than the curriculum as a matter of course, on the yard, in
the hallways, on field trips, during extracurricular activities, and
inevitably outside of the education setting if they run into each other
in the community.\21\
In sum, educators are expected to act professionally when
interacting with their students. Viewed traditionally as important role
models, they are indeed often held to a higher standard. In a formal
education setting, they are expected to keep to the education process.
They may not engage in the political, religious, or social
indoctrination of their students, and they may not act counter to
official school district policies. But outside of the classroom--within
the parameters of the above guidelines--they need not feel that they
must severely curtail lawful expression . . . so long as they do not
engage in activities that would disrupt their work environment or
interfere with the collaborative nature of faculty and staff
interaction.
`Out' Speech Scenarios in a Public School Setting
There is no one way to be out, and there are an infinite number of
ways for persons to identify as LGBT. In a K-12 setting, ``out'' speech
can vary tremendously. Students can learn of their teacher's identity,
for example, through a letter to the editor in a local newspaper where
the teacher identifies as gay while commenting on an LGBT-related
issue. They may learn that a teacher is LGBT if the teacher attends a
school function with a partner of the same or similar gender. They may
find out that a teacher is gay or transgender through a friend or
family member who may already know. In these types of situations, the
educator's First Amendment rights are very strong. Being gay is legal
in all 50 States, and--absent additional facts--none of the rules
discussed above are violated under such circumstances. All persons are
entitled to be open about fundamental aspects of identity and
personhood in their communities.
On school grounds, interaction tends to be more structured, and gay
or gender non-conforming educators who are out to their students
typically communicate their identity during one of three relatively
predictable scenarios. They may do so while conversing with students
informally regarding such casual topics as pop culture, fashion,
sports, family, and related matters; while engaging in non-curricular
related communication--often before or after class--regarding current
issues and events; or while teaching a formal lesson or conducting a
classroom activity. Assuming that the self-identification is
communicated in a professional manner that parallels the way that any
straight colleague might reveal an ethnic or religious identity, allude
to her marital status, or reference family-related circumstances and
events, the only scenario where an LGBT person should arguably exercise
additional discretion is the formal classroom setting.\22\
Even apart from any of the legal constraints referenced above, it
is generally agreed that as a matter of best practices, K-12 teachers
should strive to keep to the curriculum and avoid references to their
own lives. However, given the fluid and often-unpredictable nature of
classroom interaction, there may be instances even in such formal
settings that either warrant reference to a teacher's individual
circumstances or may naturally include such references without
violating any standards of professionalism.
For example, there are school districts (and private schools)
across the country that mandate LGBT-related discussions and
activities--sometimes at a particular time of year and generally linked
to the teaching of tolerance and the celebration of differences. The
Los Angeles Unified School District has done this by officially
recognizing June as ``Gay and Lesbian Awareness Month.'' As reported in
a 2000 Ninth Circuit opinion, an official District memo designated the
month as ``a time to focus on gay and lesbian issues,'' and noted that
the Board of Education's resolution setting this in motion was passed
to support ``Educating for Diversity.'' \23\ The memo also informed
schools that ``posters and materials in support of Gay and Lesbian
Awareness Month'' would be provided to them, and that these ``were
designed to aid in ``the elimination of hate and the creation of a safe
school environment for all students.'' \24\ In circumstances such as
these, LGBT-related lessons consistent with District policy and
delivered pursuant to a State's academic and curricular standards might
appropriately include references by teachers to actual gay individuals
and their work. Heterosexual teachers conducting such lessons might
decide to mention gay friends or family members of their own. In a
similar fashion, LGBT teachers might choose to reference their own
identities in this context . . . especially if they are already out on
campus and in the larger community.
Another instance of ``out'' speech that could fit naturally during
formal classroom interaction might be a lesson on another country,
where a teacher shares her experiences traveling through that country.
A unit on Brazil, for example, is greatly enhanced if a teacher has
been there and can bring in pictures and objects from the trip. In
these circumstances, if a heterosexual teacher has traveled with a
spouse or even with a boyfriend or girlfriend, the teacher often
references that fact or may even show pictures or videos that include
these others. In the same manner, LGBT educators who desire to do so
should conceivably feel equally comfortable indicating that they have
visited particular places in Brazil with a partner, boyfriend, or
girlfriend of the same or similar gender.
However, every situation and every school community is different,
and just as heterosexual teachers might choose to exercise discretion
in these types of lessons, so too should LGBT educators exercise
similar discretion. In addition, although again there is no hard and
fast rule here, gay and gender non-conforming teachers who are not
already out at school would probably be advised not to plan to come out
for the first time in front of their classes in a formal setting.
Of course, teachers cannot plan for every possible interaction that
may occur. And a classic example of unpredictability in the classroom
is when a student asks the teacher a question of a personal nature.
Indeed, it is rare for a school year to go by anywhere in the country
without teachers being asked such questions as ``who did you vote for?
'' or ``what's your opinion on this? '' or ``are you married? '' It was
just this sort of unpredictability that led to a highly publicized
controversy in 2004 regarding Ron Fanelle's ``out'' speech to his
seventh and eighth grade students.
The Fanelle Controversy and Its Implications: A Case Study
A popular social studies teacher at Monte Vista Middle School in
Ventura County, California, Ron Fanelle agreed to marry longtime
partner Randy Serak when San Francisco Mayor Gavin Newsom opened City
Hall ceremonies to same-sex couples in early 2004. Fanelle, who was out
to his colleagues and his principal but not to his students, was
congratulated on the marriage at a staff meeting, after which several
teachers apparently spread the news.
According to reports in the L.A. Times, the Ventura County Star,
the San Jose Mercury-News, and CNN, Fanelle was asked by one of his
students in front of his entire seventh and eighth grade class whether
it was true that he had recently gotten married. He chose to answer
``yes.'' He was then asked whether it was true that he had married
another man, and he answered ``yes'' to that as well. It is not clear
from the news reports exactly what transpired, whether a formal lesson
had already been under way, and precisely what interaction followed. It
appears, however, that students gave him a standing ovation, and that
several follow-up questions were asked . . . such as how long the two
had been together and why he did not wear a wedding ring or have a
picture of Serak on his desk. It also appears that a boy in the class
``began muttering negative comments under his breath,'' and that
Fanelle then chose to conduct an unplanned discussion regarding
suffrage, bigotry, harassment law, and the Magna Carta.
As a result of these events, one parent apparently requested that
his child be removed from the class, and another--whose child was not
in the class at all--chose to raise the issue publicly at the next
school board meeting. The parent was quoted as saying that he came to
the meeting ``. . . with a heavy heart. A seventh-grade history teacher
announced to his students he's gay. I'm very upset and disappointed
that this person was bringing his homosexual platform to the
classroom.'' The story was picked up by the local media, a District
``investigator'' showed up unannounced at Fanelle's home to ask him
questions, and there were intimations that Fanelle might be disciplined
or even fired. The California Teachers Association provided him with an
attorney, and Fanelle also contacted the highly regarded legal director
of the National Center for Lesbian Rights--Shannon Minter--who spoke on
his behalf to the press.\25\
Several weeks later, after an outpouring of support for Fanelle
among parents and students in the community, the school board announced
that the ``investigation'' had ended, and insisted that there was never
any consideration of discipline or job-
related action. Yet the emotional and very public nature of the
controversy that had ensued left Fanelle and many other LGBT educators
concerned about the still-
prevailing double standard that apparently exists in so many places.
Application of Basic First Amendment Principles. The Fanelle matter
was a widely reported incident that did not result in any legal action.
But had a case gone forward, and had Fanelle chosen to contest any
efforts by the District to reprimand, censor, or discipline him in any
way, the First Amendment principles outlined above would have been
central to his case. He would have been able to argue that not only did
he have the right to reveal his same-sex marriage under basic freedom
of expression doctrine, but that he had the right to be treated the
same as any straight teacher who had revealed his or her different-sex
marriage.
A married teacher, when asked if he or she is in fact married, is
entitled under U.S. law to answer the question affirmatively. Whether
the marriage is a gay marriage or a straight marriage is irrelevant in
these circumstances. Fanelle did not break any laws, and unless all
teachers are prohibited from responding to questions about their
marital status, he must be allowed to respond as he did. Indeed, these
assertions would be at the heart of his case at the intersection of the
1st and Fourteenth Amendments and would likely result in a victory for
him.
It is conceivable, however, that had this case gone to trial, the
District would have acknowledged the above points but would have sought
to focus on the discussion that ensued in his class after his response
to the questions, and on the age-appropriateness of Fanelle's comments
and actions. They might have argued that he was within his rights to
answer the initial questions, but that he should have then returned to
the lesson of the day, consistent with the principle that in a formal
classroom setting a teacher is supposed to be delivering the
curriculum.
Debriefing, Responding to Student Questions, and ``The Teachable
Moment.'' While it is unclear from the reports exactly what took place
during the discussion, the activity apparently addressed the topic of
marriage equality within the larger context of the history of our legal
system. Fanelle appeared to have focused on highlights of how the legal
system had grown and developed by acknowledging basic rights of human
beings and addressing discriminatory practices of both monarchies and
elected governments. Among these highlights were the Magna Carta and
the right to vote.\26\
Building on the principle that teachers cannot be expected to be
automatons, and that the direction a lesson takes is inevitably shaped
by student questions and comments, there is no evidence from the
reports that Fanelle engaged in any sort of one-sided diatribe or
exhibited any attempt to indoctrinate his students. Under the continuum
analysis referenced above, for example, an attempt to indoctrinate only
arises in circumstances such as when the alleged indoctrination is
``systemic,'' when the students are ``required . . . to agree with or
affirm'' a particular idea, and/or when they are ``subject to a
constant stream'' of similar content. Nothing of this sort happened
here. In fact, there were no allegations of any efforts at
indoctrination. The parent who complained to the school board did not
have a student in Fanelle's class and did not focus on the discussion
that ensued, but merely on the fact that Fanelle acknowledged his
homosexuality.\27\
Neither is there any evidence that the teacher even strayed from
the content of his curriculum. This was a seventh and eighth grade
social studies class. Seventh grade curriculum in California includes
world history, and eighth grade curriculum includes U.S. history.
Fanelle appeared to be conducting a focused discussion that brought
together highlights from both.
As a matter of best practices, Fanelle was also following two
research-based guidelines that every K-12 teacher preparation program
recommends: seek to debrief highly unusual occurrences and take
advantage of the teachable moment. Something very different had just
happened in this classroom. Students could not and should not be
expected to simply return to the matters at hand without having had a
chance to process the event. And this was also a classic example of a
teachable moment, particularly in light of the fact that in the Spring
of 2004, the media was filled with pictures of gay and lesbian couples
getting married in Massachusetts and San Francisco, Canada was in the
process of legalizing same-sex marriage, and a debate over these
matters was raging across the Nation. The best social studies teachers
are always expected to integrate current events into the curriculum,
helping students see the relationship between present and past events
as well as the larger scope of history across the board. What better
opportunity to do this than the revelation that the students' own
teacher had participated in the very events that were at the top of the
news during that time.
Age Appropriateness and the ``Teaching'' of Gay Marriage. As to the
age-appropriateness question, there was no evidence that Fanelle's
discussion was not age appropriate.\28\ Traditionally, marriage has not
been a topic that is off limits in a
K-12 classroom, and students at every age know that people form
relationships, pair up, and often eventually get married. Middle school
students in the earlier stages of adolescence are particularly
cognizant of these facts, as they begin to experiment with friendships
and relationships of their own.
Yet while marriage as a topic has come up as a matter of course in
K-12 classrooms throughout history, and indeed elementary school
students in the United States have traditionally been taught a unit on
``the family'' in the primary grades, it must be acknowledged that the
question of how to approach it in public schools today has emerged in
the aftermath of unprecedented developments over the past decade.
Internationally, during this time, seven countries (Belgium, Canada,
the Netherlands, Norway, Spain, South Africa, and Sweden) legalized
same-sex marriage. In the U.S., same-sex marriage was legalized in six
States (Connecticut, Iowa, Maine, Massachusetts, New Hampshire, and
Vermont), and gay marriages in other jurisdictions were recognized in
New York, Rhode Island, and DC. Six other States plus DC had in place
some form of civil union or domestic partnership for same-sex couples.
And approximately 18,000 same-sex couples remained legally married in
California. In addition, by the end of 2009, 18 States now offered
benefits for same-sex partners of State employees.\29\
The tension regarding the dramatic developments that led to the
legal recognition of same-sex relationships in so many contexts and on
so many fronts since the year 2000 came to a head during and after the
2008 California Proposition 8 campaign. Advocates of Proposition 8,
which sought to take away the newly won right of gay and lesbian
persons to marry the person they loved, had great success turning the
debate away from marriage equality and directly toward the public
schools. In the eyes of many, a widely distributed campaign ad
featuring Pepperdine University Law School Professor Richard Peterson
was seen as helping to turn the tide in favor of proponents of the
proposition, which was approved by the voters, 52 percent to 48
percent.
The Transcript of the `Yes on 8' ad with Prof. Richard Peterson
reads as follows:
Mom, guess what I learned in school today?
What, sweetie?
I learned how a prince married a prince, and I can marry a
princess.
Prof. Richard Peterson (Pepperdine)--``Think it can't happen?
It's already happened. When MA legalized gay marriage, schools
began teaching second graders that boys can marry boys. The
courts ruled parents had no right to object.'' (Video shows
``No Legal Right to Object,'' and then the name of the case
``Parker v. Hurley'' and its cite (2008).) \30\
Under CA law, public schools instruct kids about marriage.
(Video shows Ed Code Section 51933 (7) ``Instruction and
materials shall teach respect for marriage . . . '')
Teaching children about gay marriage will happen here unless
*we* pass Proposition 8. Yes on 8.\31\
While the ad clearly tapped into the fear of the inevitable--i.e.
that to the extent that same-sex relationships would now be completely
acceptable under the law, any reference to gays and lesbians in the
schools would ultimately be no more unusual or unacceptable than a
reference to a man dating or marrying a woman--it must be noted that
whether and to what extent the California public schools ``taught'' gay
marriage was not dependent on the passage of Proposition 8. Many
teachers were already addressing these issues within the context of the
State curricular standards, and students were bringing in front-page
newspaper articles reporting on developments in this context across the
country and around the world. Fanelle's class discussion was just one
of many examples. These practices did not stop when Proposition 8 was
approved. Indeed, if anything, the volatile aftermath of the ballot
initiative campaign led to much more ``teaching'' of gay marriage in
public school classrooms than had ever been the case before. And absent
additional facts, such discussions are completely legal.\32\
The events surrounding Ron Fanelle's ``out'' speech reflect what
can and does happen in some areas of this country when a K-12 educator
reveals an identity that may vary from the expected norm. Such events
can be particularly difficult during times when emotions are running
high regarding gay and lesbian issues, as they were in March 2004 and
in the Fall of 2008, both locally and nationally.
The Fanelle controversy also reflects the continuing prevalence of
``conspiracy theories,'' as indicated by the one parent's allegation at
the school board meeting that the teacher was ``bringing his homosexual
platform to the classroom.'' \33\ Even so, in spite of all that
occurred and all the emotions that were stirred up within this
community, the District acknowledged in the end that Fanelle did
nothing wrong, and no case was ever brought against him. Such an
acknowledgment is clearly rooted in the conclusion that both under the
law and as a matter of policy Fanelle was well within his rights and
conducted himself both appropriately and professionally.
FOURTEENTH AMENDMENT RIGHTS OF EDUCATORS
The Fourteenth Amendment Equal Protection Clause is the central
guiding principle governing employment discrimination law in the public
sector. Under this venerable constitutional provision, people similarly
situated must be treated equally. When intentional discrimination is
shown, the Fourteenth Amendment alone often serves as the primary basis
for a plaintiff 's victory. In addition, the mandate of the Equal
Protection Clause can be strengthened by specific Federal and State
laws prohibiting discrimination on the basis of categories such as
race, gender, religion, age, and disability.\34\
Gay and gender non-conforming educators in a growing number of
States can benefit from such specific laws, which grant explicit
protection against discrimination on the basis of LGBT status. But the
Fourteenth Amendment remains the primary vehicle that aggrieved
educators can employ in this context. While no education cases
addressing alleged discrimination on the basis of LGBT status have
reached the U.S. Supreme Court, the Court did prohibit LGBT-related
discrimination in Romer v. Evans and Lawrence v. Texas.
Indeed, even in the years immediately preceding the 2003 decision
in Lawrence, the tide had begun to turn in favor of out educators who
were dismissed from their positions simply because of who they were.
Under employment discrimination law, as reflected primarily in
Fourteenth Amendment Equal Protection Clause principles, such
dismissals are not holding up in court.
Glover v. Williamsburg Local School District
A noteworthy example of this trend is the 1998 Federal court
victory by Ohio teacher Bruce Glover. A 46-year-old openly gay white
man in a relationship with an African-American man, Glover left the
insurance industry to pursue a career in education. After successfully
completing student teaching and receiving an Ohio Teaching Certificate,
he took a position as an upper elementary teacher in Williamsburg.\35\
Things started to deteriorate when a false rumor began circulating
that Glover and his partner had been holding hands at the sixth grade
holiday party. In January, even after it had become clear that the
rumor was false and that Glover had done nothing other than be out as a
gay person, District officials began warning him, lecturing him,
monitoring his classroom excessively, and creating an increasingly
hostile and humiliating environment. Administrators admonished him ``to
be careful not to do anything which might fuel rumors and upset the
community,'' and warned him ``that people in the community might be
concerned if Glover had to stay after school alone with a male
student.'' In addition, he was told ``that he had better be careful
because there was a small group of parents that was out to get him.''
\36\
At the end of the year, despite a solid overall record of teacher
evaluations, he was not rehired.
Glover challenged the decision not to rehire him under the Equal
Protection Clause of the Fourteenth Amendment. He alleged that the
Board's decision was discriminatory ``based on his sexual orientation,
his gender, and the race of his partner.'' The Court determined that
``[h]omosexuals . . . are entitled to at least the same protection as
any other identifiable group which is subject to disparate treatment by
the State.'' The Court also explained that the principle would be the
same if Glover had been arrested discriminatorily based on his hair
color, his college bumper sticker, or his affiliation with a disfavored
company. Furthermore, the Court declared:
[A] State action which discriminates against homosexuals and
is motivated solely by animus towards that group necessarily
violates the Equal Protection Clause, because a ``desire to
effectuate one's animus against homosexuals can never be a
legitimate governmental purpose.'' \37\
The Court found that the evidence, taken together, ``demonstrates
that the . . . purported reason for Glover's nonrenewal was pretextual,
and in fact the Board discriminated against Glover on the basis of his
sexual orientation'' \38\
The Court went on to find that the Board's ``wrongful decision''
denied him the opportunity to teach at Williamsburg Elementary School
in both 1996-1997 and 1997-1998, and that he had been unable to secure
a permanent teaching job since the nonrenewal of his contract.
Therefore, the Court ordered the Board to re-instate him as a full-time
teacher at Williamsburg Elementary School with a 2-year contract,
beginning with the 1998-1999 school year. Glover was also awarded money
for back pay as well as emotional distress. The Court emphasized that
as a result of the Board's wrongful actions, ``he suffered considerable
anguish as well as humiliation in the community. Glover's psychological
injuries also had physical effects, including anxiety, sleeplessness,
and digestive problems'' for which Glover had been receiving treatment
since the Fall of 1996.
Weaver v. Nebo School District
The ruling in the Weaver case is consistent with the trend
recognizing strong Fourteenth Amendment rights for openly LGBT
educators in an employment discrimination context. In this 1999
lawsuit, a Utah Federal court considered the case of 19-year veteran
teacher and volleyball coach Wendy Weaver--a person with an
``unblemished'' record and a reputation as ``an effective and capable
teacher''--who answered affirmatively when asked by a senior team
member if she was gay. She was subsequently admonished ``not to make
any comments, announcements or statements to students, staff members,
or parents of students regarding . . . [her] . . . homosexual
orientation or lifestyle.'' In addition, she was removed from her
position as volleyball coach.\39\
Ms. Weaver brought a lawsuit challenging the school district's
decisions under both the First Amendment and the Fourteenth Amendment.
The Court found that ``to the extent [that the letters of admonishment]
limit her speech in this area, they violate the First Amendment.''
Turning to the Equal Protection Clause claim, the Court also found
in favor of the plaintiff. ``[T]he Fourteenth Amendment of the U.S.
Constitution entitles all persons to equal protection under the law,''
the Court explained. ``It appears that the plain language of the
Fourteenth Amendment's Equal Protection Clause prohibits a State
government or agency from engaging in intentional discrimination--even
on the basis of sexual orientation--absent some rational basis for so
doing. [And] the Supreme Court has recognized that an `irrational
prejudice' cannot provide the rational basis to support a State action
against an equal protection challenge.'' \40\
The Court then found that the ``negative reaction'' some members of
the community may have towards gays and lesbians ``is not a proper
basis for discriminating against them'':
If the community's perception is based on nothing more than
unsupported assumptions, outdated stereotypes, and animosity,
it is necessarily irrational and under Romer and other Supreme
Court precedent, it provides no legitimate support for the
School District's decisions.
Although the Constitution cannot control prejudices, neither
this court nor any other court should, directly or indirectly,
legitimize them.\41\
The District was ordered to re-instate Weaver as the volleyball
coach, and to remove the offending letters of admonishment from her
personnel file.\42\
The Dana Rivers Settlement
The former David Warfield had already built an impressive resume
when he was hired by a suburban Sacramento school district to teach
history and journalism at Center High. He had been a Navy electronics
expert, a political consultant and school board member in Huntington
Beach, CA, a baseball coach, and a whitewater rafting instructor.
Warfield proved to be a highly successful teacher at Center High
throughout the 1990's. Over a 9-year period, students often called him
one of the best teachers they ever had, and many remembered him as a
major influence on their lives. According to the New York Times, he
developed a program for unmotivated students that became the award-
winning Media Communications Academy. He was the recipient of a $80,000
grant for the program, won the school's Stand and Deliver award for the
teacher who most inspires students, and received a standing ovation
from the district's staff at its annual meeting in late 1998.\43\
Yet when Warfield revealed in a Spring 1999 letter to his
colleagues that he was transitioning from male to female, would be
undergoing gender-reassignment surgery, and planned to return to school
as an MTF (male-to-female) transgender person named Dana Rivers, it was
not long before he was removed from his teaching position.\44\
While the exact parameters of what transpired during those months
may never come to light, it is well established that--upon learning the
news of the teacher's transition--the school board sent a letter
disclosing it to all 1,500 families in the district. Only a handful of
parents protested the teacher's actions, but board members who were
uncomfortable with Rivers' gender identity expressed their disapproval
openly and triggered an increasingly rancorous debate.
Rumors abounded during that spring and summer, including
allegations by a handful of parents that Rivers had shared
inappropriate personal details regarding the decision with her
students.\45\ According to school board member Ray Bender, the majority
of the board did not want a transgender teacher in the District, and
these allegations enabled them to justify their 3-2 decision never to
allow Rivers back. She was put on administrative leave in late summer,
and eventually dismissed.
Bender, who voted against dismissal, was quoted as saying that the
Dana Rivers controversy had become ``a cause for religious
conservatives assisted by the Pacific Justice Institute, a local
conservative legal organization that demanded that the school board
fire the teacher or face a lawsuit.'' Indeed, one board member was
heard telling a parent that this was ``a holy issue.'' \46\
The parental allegations were disputed by Rivers and several of her
former colleagues. The colleagues stated that students learned the news
of the transition when teachers read the original coming out letter to
their classes. And Rivers reported that as rumors began circulating
throughout the school and students began asking about them, she agreed
to an interview with the school newspaper, which published a 2,600-word
profile during the final week of the semester.\47\
Represented by private counsel but also in consultation with the
ACLU, Rivers challenged her termination as discriminatory and as a
violation of her First Amendment rights. Very quickly, she won a
$150,000 settlement with the school district. Although she reportedly
vowed that she would never teach again, she was offered a job 18 months
later in a suburban San Jose high school and returned to the classroom
in the Fall of 2001.\48\
In addition to her ongoing contributions as an educator, Rivers
became a prominent public interest activist, and has continued working
to achieve equal rights for transgender persons.\49\
OTHER LEGAL DEVELOPMENTS BOLSTERING THE RIGHT TO BE OUT
FOR LGBT EDUCATORS
While the Equal Protection Clause of the Fourteenth Amendment
remains the country's most basic prohibition against discrimination by
the government and other public officials, a range of other legal
developments provide additional protection in both the public and the
private sectors.
For LGBT educators, one of the most significant developments in
this context was the California Supreme Court's 1969 decision in
Morrison v. State Board of Education. Most State education codes
include the provision that a teacher may be dismissed for ``immoral or
unprofessional conduct.'' Yet these words are typically not defined,
and it was not until this case that a major U.S. court interpreted
their meaning and determined how they should be applied.
Coincidentally, the dispute at issue in this case was LGBT-related,
arising over an attempt to revoke the credential of a male teacher who
had engaged in a brief consensual affair with another male teacher in
his school district.\50\
Marc Morrison was a fully credentialed educator employed by the
Lowell Joint School District in the Whittier-La Habra area of southern
California during the early 1960's. His record was unblemished, with no
one ever complaining about or criticizing his classroom performance,
and no suggestion that even his ``conduct outside the classroom . . .
was other than beyond reproach.''
By early 1963, Morrison had become friends with fellow teacher Fred
Schneringer, and apparently served as a trusted adviser for him and his
wife. In the spring of that year, a time when the Schneringers were
``involved in grave marital and financial difficulties,'' Morrison
spent much time with the two of them, frequently visiting their
apartment and providing them with ongoing ``counsel and advice.'' When
Schneringer later obtained a separation from his wife, Morrison
suggested a number of women whom Schneringer might consider dating.\51\
A year after these events, for reasons that remain unclear,
Schneringer chose to reveal that during a 1-week period in April 1963,
he and Morrison ``engaged in a limited, non-criminal physical
relationship.'' At the time, most common homosexual acts were
considered crimes in almost every State, and the fact that the conduct
between the two was described as ``non-criminal'' indicates just how
limited the physical contact must have been.\52\ Yet as a result of
these events Morrison was apparently pressured to resign from the
District, and the State Board of Education followed by revoking his
teaching credential, a revocation that Morrison chose to contest in
Court.\53\
While Morrison acknowledged that the contact had been ``of a
homosexual nature,'' this was not a ``gay rights'' case in the
traditional sense of the term. Morrison never claimed to be gay,\54\
never asserted any rights under either the First or Fourteenth
Amendments, and never argued that he was being discriminated against in
any way. His entire argument, which ultimately carried the day, was
that what he had done did not warrant revocation of his teaching
credential because it had nothing to do with his fitness to teach.
Justice Matthew Tobriner, writing on behalf of the California
Supreme Court majority, proceeded to conduct a thorough review of other
decisions addressing dismissal of employees--both within and outside of
education--for alleged ``immoral or unprofessional conduct'' or ``moral
turpitude.'' Tobriner found that by using these terms in the Education
Code ``the Legislature surely did not mean to endow the employing
agency with the power to dismiss any employee whose personal, private
conduct incurred its disapproval:''
In the instant case the terms denote . . . conduct . . .
which indicates unfitness to teach. Without such a reasonable
interpretation the terms would be susceptible to so broad an
application as possibly to subject to discipline virtually
every teacher in the State.\55\ . . . We cannot believe that
the Legislature intended to compel disciplinary measures
against teachers . . . [for conduct that] . . . did not affect
students or fellow teachers. Surely incidents of extramarital
heterosexual conduct against a background of years of
satisfactory teaching would not constitute ``immoral conduct''
sufficient to justify revocation of a life diploma without any
showing of an adverse effect on fitness to teach.\56\
The Court examined the circumstances surrounding Morrison's brief
affair and found ``no evidence'' whatsoever that his conduct
``indicated his unfitness to teach.'' \57\ In conclusion, Justice
Tobriner emphasized that ``[t]he right to practice one's profession is
sufficiently precious to surround it with a panoply of legal
protection,'' and that ``[t]he power of the State to regulate
professions and conditions of government employment must not
arbitrarily impair the right of the individual to live his private
life, apart from his job, as he deems fit.''
The Morrison decision proved to have wide-ranging impact over the
entire area of public employment law, and it soon took on the trappings
of a national decision as one court after another followed its
reasoning and adopted its conclusions.\58\ For gays and lesbians, the
decision was particularly important. The fact that private homosexual
conduct between consenting adults would not result in the loss of
employment absent additional facts was a giant step forward for LGBT
educators. Only a decade earlier, it was the gays who suffered the most
under the arbitrary dismissal policies of the McCarthy era, when
President Eisenhower issued an executive order requiring that all
``known homosexuals'' be dismissed from government jobs.\59\ More
people lost their jobs under this edict than under any other category
of alleged security threat during the McCarthy ``witch hunts.'' \60\
In the decades that followed, Federal and State laws have been
adopted that seek to provide additional protection above and beyond the
Equal Protection Clause. Some of these laws focus specifically on the
workplace, while others are more general. Most typically, the laws
delineate exactly which groups are protected.
Title VII of the Civil Rights Act of 1964, for example, prohibits
discrimination in the workplace on the basis of ``race, color,
religion, sex, or national origin.'' To the extent that LGBT educators
alleging employment discrimination also fall into one or more of these
categories, and should they be able to prove discriminatory conduct on
the basis of such characteristics, their legal position might certainly
be strengthened. But as a general rule, apart from the Equal Protection
Clause and the Morrison decision, the most important guarantee of equal
treatment for LGBT educators in this area is the passage of a Federal
or State law specifically prohibiting discrimination on the basis of
sexual orientation or gender identity.\61\
Over the past decade, there has been significant movement in this
area, with the number of States explicitly prohibiting employment
discrimination on the basis of sexual orientation increasing by almost
50 percent, from 11 to 21. The State statutes typically add sexual
orientation status to a list of other categories--such as race, gender,
age, and disability--that are already protected.
Increased protection against gender identity discrimination in the
workplace has also been forthcoming in recent years. According to the
Human Rights Campaign (HRC), as of July 2009, 12 States plus the
District of Columbia explicitly prohibit workplace discrimination on
the basis of both sexual orientation and gender identity. They include
California (1992, 2003), Colorado (2007), District of Columbia (1977,
2006), Illinois (2006), Iowa (2007), Maine (2005), Minnesota (1993),
New Jersey (1992, 2007), New Mexico (2003), Oregon (Jan. 2008), Rhode
Island (1995, 2001), Vermont (1991, 2007), and Washington (2006).\62\
In addition, 9 other States prohibit workplace discrimination on
the basis of sexual orientation alone: Connecticut (1991), Delaware
(2009), Hawaii (1991), Maryland (2001), Massachusetts (1989), Nevada
(1999), New Hampshire (1998), New York (2003), and Wisconsin
(1982).\63\
Several other States also provide a level of statutory protection
for LGBTs. Indiana and Pennsylvania, for example, have personnel rules
prohibiting discrimination based on sexual orientation or gender
identity for public employees, while Alaska, Louisiana, and Montana
protect public employees against sexual orientation discrimination but
do not address gender identity.\64\
Finally, an often over-looked area in this context is the
opportunity to build protections against discrimination into collective
bargaining agreements. Models exemplifying such an approach are in
existence nationwide, and indeed the prospects of forging alliances
between LGBTs and labor movements should not be discounted.\65\
All told, this is an area that has seen much progress, and the
right to be out for LGBT educators under our legal system continues to
be strengthened as a result.
SCHROEDER V. HAMILTON SCHOOL DISTRICT: A CASE STUDY OF LGBT
EDUCATOR MISTREATMENT
The Schroeder case is perhaps the most egregious example in recent
memory of an educator who was abused and vilified for no reason other
than his LGBT status. Not only was the 20-year District veteran
mistreated by school officials, but he was also mercilessly harassed
over an extended period of time by members of the suburban Milwaukee
school community, including colleagues, parents, and students. Yet,
unlike all the other cases identified in this chapter, and despite the
fact that the mistreatment led to both a nervous breakdown and the loss
of employment, the Schroeder case is the only one to have been decided
against the teacher.\66\
The facts of the case document, at great length, a pattern of
indifference by school officials to the persistent and pervasive
mistreatment of an openly gay teacher who had come out after being with
the District for over 15 years. In the years immediately after he came
out, Schroeder experienced harassment primarily from students at
Templeton Middle School. This included ``a student calling him a faggot
and remarking `How sad there are any gays in the world'; another
student physically confront[ing] Schroeder after shouting obscenities
at him; catcalls in the hallways that he was a `queer' or a `faggot';
obscenities shouted at him during bus duty; harassing phone calls with
students chanting `faggot, faggot, faggot' and other calls where he was
asked whether he was a `faggot'; and bathroom graffiti identifying
Schroeder as a `faggot,' and describing, in the most explicit and
vulgar terms, the type of sexual acts they presumed he engaged in with
other men.'' Schroeder reported this harassment on several occasions,
and the defendants apparently ``consequenced'' students who could be
identified. Yet much of the harassment was allegedly anonymous, and the
District made little or no apparent effort to discover who might have
been behind it.
After repeatedly requesting a transfer, Schroeder was finally re-
assigned to Lannon Elementary School in the Fall of 1996. At Lannon,
the harassment came primarily from parents in the school community. An
anonymous memo, for example, was circulated by a parent, stating that
``Mr. Schroeder openly admitted at a District meeting that he was
homosexual. Is that a good role model for our 5-, 6- and 7-year-old
children? '' People began calling him a pedophile and suggesting that
he was sexually abusing small boys. The tires on Schroeder's car were
slashed, and he began receiving anonymous, harassing phone calls at
home, which included comments such as ``Faggot, stay away from our
kids'' and ``We just want you to know you . . . queer that when we pull
out all our kids, you will have no job.''
Not only did District colleagues consistently fail to intervene,
but they often made things worse through their own comments and the
messages they conveyed to others. Fellow teachers at both schools
reportedly made numerous insulting and homophobic comments about
Schroeder behind his back over time. The Assistant Principal refused to
relieve Schroeder of bus duty, even after repeated requests and
extensive evidence that some of the most egregious harassment occurred
when students shouted anti-gay epithets at him from bus windows. Little
or no apparent effort was expended on the part of either the bus driver
or the administration to limit this student behavior. Instead,
Schroeder was told that ``you can't stop middle school kids from saying
things. Guess you'll just have to ignore it.'' \67\
After repeated complaints by Schroeder over time, the
administration at Templeton finally sent a memo to faculty and staff.
However, the memo only stated ``that students were continuing to use
`inappropriate and offensive racial and/or gender-related words or
phrases,' and that `if you observe or overhear students using
inappropriate language or gestures, please consequence them as you feel
appropriate.' '' Indeed, perhaps the most egregious behavior on the
part of school officials was the refusal by Templeton administrators to
even mention the word ``gay'' or the words ``sexual orientation'' in
their communication with the school community. People reading such a
memo, for example, could reasonably conclude that it had absolutely
nothing at all to do with LGBT issues.
Others, however, might find the comments of the Lannon principal a
few years later to be even more egregious than the decision of these
administrators to treat terms such as sexual orientation as
``unmentionable'' in a school setting. At Lannon, as a result of
completely unsupported allegations on the part of certain parents that
Schroeder was a pedophile, the principal told Schroeder that they might
need to implement ``proximity supervision,'' meaning that Schroeder
would not be allowed to be alone with male students.\68\
At trial, and during the appeal, the District asserted that its
officials did ``all that could be done.'' While the Seventh Circuit's
majority ultimately disagreed with the District and acknowledged that
more could indeed have been done, both Judge Daniel A. Manion and Judge
Richard A. Posner found no violation of the Equal Protection Clause
because they concluded that school officials did ``all that [was]
required.'' The panel majority held that the evidence presented by
Schroeder did not amount to proof that he had been ``treated
differently from his non-homosexual colleagues.''
Yet the judges also held that even if there had been differential
treatment in particular instances, that treatment was justified. Judge
Manion, writing for the majority, focused extensively on the refusal of
District administrators to use the word gay or the term sexual
orientation in the memo to the school community. The Court acknowledged
the differential treatment between an earlier response to racial
harassment and the response to the harassment of the openly gay
teacher, but found this differential treatment to be justified. Manion
concluded that the school was right to not mention the words in a
middle school environment. ``Unfortunately,'' he stated, ``there is no
simple way of explaining to young students why it is wrong to mock
homosexuals without discussing the underlying lifestyle or sexual
behavior associated with such a designation.'' \69\
In his concurrence, Judge Posner went even further than Judge
Manion, explicitly concluding that some teachers deserve greater
protection than others, and that schools are justified in protecting
gay teachers less. ``I write separately,'' Posner declared, ``to
emphasize that our decision would be the same even if Schroeder were
right [and had demonstrated that he had been discriminated against on
the basis of his sexual orientation]. ``Homosexuals have not been
accorded the constitutional status of blacks or women, . . . [and] as
for whether the defendants would have been irrational in failing to
protect a homosexual teacher as assiduously as they would have
protected a black or female teacher subjected to the same amount of
abuse, a number of considerations show that they would not have been.''
\70\
A principled reassessment of the Manion and Posner opinions leads
to the conclusion that not only was the Schroeder case wrongly decided
under the law and as a matter of public policy in 2002, but that today
such a case may very well be decided differently.
First and perhaps foremost, the majority failed to acknowledge key
facts. In the words of dissenting Judge Diane P. Wood:
Never, in the course of these events, did the administration
ever attempt to dissuade either students, parents, or anyone
else in the broader community of the school district, to
refrain from discrimination or harassment based upon sexual
orientation. Indeed, . . . school officials never even told the
students that the words being used to describe Schroeder
transgressed the general code of civility the majority is
recommending to schools. Schroeder was just told to tough it
out.
The only thing Schroeder wants is the same treatment that
everyone else is receiving.\71\
Schroeder argued, essentially, that the District violated his
rights by treating him differently than others because of his openly
gay identity. The District replied that--practically speaking--it could
only do so much, and that in any case its legal obligations do not
extend to ``protecting'' its employees from the type of mistreatment
Schroeder experienced, especially when at least some of the
mistreatment took place outside of the work environment and when at
least some of the perpetrators were persons outside of the District's
control.
It must be acknowledged that society often asks more from school
officials than they are reasonably able to do. Indeed, the duty to
supervise on school grounds under tort law is generally viewed as a
duty to protect students, not as a duty to protect teachers. Yet as a
matter of policy it is unfathomable to imagine school district
officials telling faculty that they should not expect their personal
safety to be addressed on campus. Indeed, laws mandating safe
environments for employees in the workplace generally are widespread
and extensive at both the Federal and the State levels.
Perhaps the strongest argument set forth by the defendants in the
Schroeder case is that they should not be held accountable for the
portion of the harassment that took place outside of school grounds.
Even so, the law recognizes that the obligations of school officials do
not stop at the boundaries of District property, online or offline.
Relevant legislation and recent court decisions often include explicit
obligations in this regard.\72\ In addition, bonds between schools,
families, and communities are recognized in both the scholarly
literature and the policy mandates of school districts as an integral
component of the work that takes place in K-12 public education. On a
day-to-day level, such mandates are reflected in parental advisory
groups, school site councils, joint ventures with local businesses, and
a wide range of school-family-community partnerships. Education leaders
are not generally expected to limit their work to what takes place
within schoolhouse gates, and the most effective District officials
always see their responsibilities as extending out into the larger
school community, including but not limited to building bridges and
maximizing communication. Such responsibilities are informed by the
recognition that what takes place outside the schoolhouse gates often
impacts what goes on within those gates, and vice versa. In the end,
therefore, there is much that these officials can in fact do if a
teacher is being mistreated off campus for reasons that relate directly
to and flow from what is taking place on campus.
Schroeder demonstrated that he was in fact treated differently in
this context than others were and others might have been.\73\ Yet the
panel majority did not acknowledge the differential treatment, even as
it attempted, in almost the next breath, to justify the very same
differential treatment it would not acknowledge. In retrospect, the
Court was wrong on both counts. Compelling evidence was presented of
disparate and differential treatment by school officials of the openly
gay veteran teacher. And Judge Manion's attempts to justify the
school's treatment of LGBT harassment as different from other forms of
harassment demonstrates a disappointing lack of familiarity with the
scholarly research regarding age-appropriate methods of addressing peer
mistreatment in the schools. Manion suggested that the only way to
address anti-gay harassment among middle schoolers is to discuss
homosexual activity in explicit detail, a suggestion that flies in the
face of consistent findings by both scholars and practitioners today.
Upper elementary and middle school students know what being gay means.
They do not need to be given any details; they simply need to be taught
that every person--gay or straight--deserves to be treated with equal
dignity and equal respect. These are lessons that can and should be
imparted at any age level.
In the same context, Judge Posner asserted that ``the school
authorities' options are limited by an understandable reticence about
flagging issues of sex for children . . . [which will make them]
prematurely preoccupied with issues of sexuality.'' \74\ This
assertion, however, completely ignores the fact that the question of
whether it was appropriate to even mention the word gay in a memo
occurred at a middle school, and students at that level are already
preoccupied with these very issues. In addition, one might ask how it
can be considered inappropriate to talk openly about homosexuality in
an educational environment for purposes of improving school climate
when this very educational environment is already filled with so many
ongoing references to homosexuality, as reflected in the pervasive
anti-gay comments, the homophobic rhetoric, and the unusually explicit
and demeaning graffiti.
As to Judge Posner's conclusion that openly gay teachers can be
treated differently and can be given less protection than their
colleagues, it is certainly the case under current Equal Protection
Clause jurisprudence that some types of discrimination merit a higher
level of scrutiny than others. Racial discrimination, for example,
triggers strict scrutiny, gender discrimination triggers an
intermediate level of review, and discrimination on the basis of sexual
orientation in 2002 merited no more than rational basis review.\75\ Yet
this construct only addresses how courts are to act when faced with
allegations of discrimination in civil lawsuits. It is not intended as
a policy directive for school officials regarding how to treat faculty
and staff. Effective school site administrators must--in principle and
in practice--treat all their faculty members with equal dignity and
equal respect. The implications of doing otherwise--for school climate
and for the ability of a school to conduct an effective educational
program--are highly troubling even to imagine. Levels of scrutiny under
the Equal Protection Clause are simply irrelevant for these purposes.
Moreover, Judge Posner's attempt to negate the existence of any
actual injury is particularly disingenuous. Posner suggested that there
was no actual injury because the harassment was not physical but simply
constituted words. In any harassment inquiry, however, the Court is
expected to look at the totality of circumstances, and in this fact
pattern it is undeniable that the aggregate result of the mistreatment
led to devastating injuries: a complete nervous breakdown and the loss
of employment. As Judge Wood described it, ``there is no dispute that
Schroeder was a very good teacher; he taught successfully for the
District for 22 years . . . [Yet] he left the school . . . [on February
11, 1998] . . . a ruined man.'' \76\
With so much discrimination still evident within the law in 2002,
the Schroeder panel majority was not a complete outlier when it
concluded that differential treatment could be justified under a
principled reading of Federal anti-discrimination law. The decision
bucked the emerging trend, but cases such as Glover and Weaver were
decided by the lower courts, and the LGBT student cases could
conceivably be distinguished as inapplicable precedents because they
also included ongoing physical abuse. Perhaps most importantly, a good
number of States--both at the time that the events unfolded, and even
in 2002--still criminalized private consensual relations between gay
adults.\77\
After the 2003 decision in Lawrence v. Texas, however, an attempt
to justify the type of differential treatment that was evident in
Schroeder is likely to be more difficult. Blanket assertions such as
the one by Judge Manion that ``[a] student cannot . . . be disciplined
for expressing a home-taught religious belief that homosexual acts are
immoral'' would likely be deemed incorrect as a matter of law today.
Students do indeed have the right to express home-taught religious
beliefs, but a student's religious beliefs cannot be invoked to justify
or explain away the brutal mistreatment of an openly gay employee when
similar mistreatment of other employees would not be tolerated.
Manion's reasoning not only runs counter to Lawrence, but also ignores
central principles identified by the courts under the Establishment
Clause of the First Amendment.
Absent additional facts, a school district's persistent refusal to
intervene on behalf of a beleaguered employee and a Federal court's
attempts to justify such actions in this context fly in the face of the
broad liberty and equality principles articulated in Lawrence.\78\ And
Lawrence is re-inforced in a growing number of States by local laws
explicitly prohibiting discrimination on the basis of LGBT status.\79\
Eight years after the decision by a divided appellate panel, and at
least 12 years after most of the events took place, a reassessment of
this case leads to the conclusion that were the lawsuit to be filed
today, Tommy Schroeder would likely emerge victorious. Indeed, such a
principled reassessment serves as an example of just how significant
the gains by LGBTs have been and just how strong the aggregate power of
both case law and statutory law has become in this area.
LGBT educators choosing to be out can still expect a certain level
of controversy in certain circumstances, but their First Amendment
rights in combination with their Fourteenth Amendment rights are
generally so strong that if they keep to the guidelines set forth in
this chapter, their actions will be protected under the law. Educators
have the right to identify openly as LGBT should they wish to do so.
Moreover, in circumstances where it may be viewed as appropriate for
heterosexual colleagues to reference their relationships, display
pictures of loved ones, or even introduce boyfriends, girlfriends,
spouses, or children, it is equally appropriate under the law for gay
persons to do the same. LGBTs also have the same right as their
colleagues to play supportive roles as advisers for students with
similar interests and identities. For example, just as an openly
Christian teacher can serve as a faculty adviser for an after-school
student Bible club, so too can an openly gay or transgender teacher
serve as a faculty adviser for a gay-straight alliance. Just as a
teacher with a strong ethnic identity can serve as an advisor for
students who seek a safe place to discuss their own identity-related
issues, so too can an openly LGBT educator volunteer to serve as an
advisor for queer or questioning students pursuant to District-approved
``safe zone'' programs.
Both school districts and courts of law have acknowledged the
implications of these changing realities in a wide variety of contexts.
Even defamation law is in the process of transformation as a result.
Before 2003, it was often relatively easy for a straight person who was
alleged to be gay to actually win a defamation lawsuit against the
person making that claim. After 2003, however, it is going to be much
harder to show that such an allegation alone--absent additional facts--
constitutes defamation. A Federal court indicated as much only 2 months
after the Fanelle controversy when it declared that it could not find a
statement that an individual is gay ``capable of a defamatory
meaning'':
[I]n this day and age, I cannot conclude that identifying
someone as a homosexual discredits him. . . . First, the large
majority of the courts that have found an accusation of
homosexuality to be defamatory per se . . . emphasized the fact
that such a statement imputed criminal conduct. This rationale
is extinguished by the Supreme Court's recent ruling in
Lawrence v. Texas. . . . Second, I reject the offensive
implication of plaintiffs' argument that, even without the
implicit accusation of a crime, portions of the community feel
homosexuals ``are less reputable than heterosexuals . . .''
While [recent Federal and State court decisions acknowledge]
that a segment of the community views homosexuals as immoral,
[they also conclude] that courts should not, directly or
indirectly, give effect to these prejudices. If this Court were
to agree that calling someone a homosexual is defamatory per
se--it would, in effect, validate that sentiment and legitimize
relegating homosexuals to second-class status.\80\
References
1. See, e.g., E. Edmund Reutter, Jr., The Law of Public Education
(New York: Foundation Press, 1994), 657. See also Acanfora v. Bd. of
Educ. of Montgomery County, 491 F. 2d 498 (4th Cir. 1974); Gish v. Bd.
Of Educ., 145 N.J. Super. 96 (1976); Gaylord v. Tacoma School Dist. No.
10, 88 Wash.2d 286, 559 P.2d 1340 (en banc) (1977) (all examples of
cases where courts upheld the removal of openly gay teachers from
public school teaching positions).
2. The initiative, while favored overwhelmingly in the early polls,
was defeated by the voters, 59 percent-41 percent. Many credit the
unequivocal opposition of Governor Jerry Brown, President Carter, and
then former Governor Ronald Reagan for the defeat of this initiative.
See, e.g., The Times of Harvey Milk (1984), the Academy Award-winning
documentary film that addresses these and related issues.
3. David Alan Sklansky, ``Privacy, Policing Homosexuality, and
Enforcing Social Norms--`One Train May Hide Another': Katz, Stonewall,
and the Secret Subtext of Criminal Procedure,'' 41 UC Davis Law Review
875, 906-907 (2008). In this context, Sklansky added that ``[t]he
terror and cruelty of a charge of homosexuality, the way such a charge
could destroy, in a blow, a man's reputation and livelihood, his family
life and his place in the community--all of this was well known to
Americans regardless of their own sexual practices, and witnessed
repeatedly, often close at hand.'' Ibid. at 911.
4. Ibid. at 913, quoting from ``The Homosexual in America, Time,
Jan. 21, 1966. See also Hendrik Hertzberg, ``Stonewall Plus Forty,''
The New Yorker, July 6 & 13, 2009.
5. See Elizabeth Mehren, ``The Times Poll: Acceptance of Gays Rises
Among New Generation,'' Los Angeles Times, April 11, 2004. See also
Gregory Lewis & Howard E. Taylor, ``Public Opinion Toward Gay and
Lesbian Teachers: Insights for all Public Employees,'' Review of Public
Personnel Administration 21 (2001): 133-51.
6. See Pew Research Center for the People and the Press, May 2007
Survey, http://pewresearch.org/pubs/485/friends-who-are-gay (accessed
9-18-09).
7. See ibid.
8. 2008 data from the General Social Survey reveals similar
differences regarding geography when the focus turns to higher
education. While the number of Americans who believe that gays and
lesbians should not be allowed to teach at colleges and universities is
noticeably lower than at the K-12 level, the percentages of those who
would bar LGBTs from academic positions at post-secondary institutions
still range from a low of 14.6 percent in the Pacific region to a high
of 26.9 percent in the ``West South Central'' portion of the country.
See GSS: The General Social Survey, http://www.norc.org/GSS+Website/
(accessed 7-24-09).
9. In higher education, circumstances are generally better for LGBT
educators, but many of these same pressures exist, especially at less
gay-friendly institutions. See, e.g., Shane Windmeyer, The Advocate
College Guide for LGBT Students (New York: Alyson Books, 2006), listing
both the top 20 and top 100 colleges and universities for LGBT students
in the United States.
In recent years, the organization known as Soulforce has conducted
``equality rides'' across the United States to call attention to issues
that still remain unresolved in this regard. Comprised primarily of
LGBTs in their twenties who themselves identify as Christian, Soulforce
teams have visited universities that expressly limit LGBT expression
and in many cases expel students and dismiss faculty who are openly gay
or lesbian. The visits met with varying responses from college
administrators. See, e.g., Lou Chibbaro, Jr., ``30 Arrests Made at
`Equality Ride' protests in Virginia,'' Washington Blade, March 17,
2006. See generally www.soulforce.org (accessed 8/1/09).
10. See Parker v. Hurley, 514 F.3d 87, 105-107 (1st Cir. 2008). In
Hurley, the Court addressed claims that the reading aloud of King and
King--a gay-positive book--by a teacher in an elementary school
classroom constituted indoctrination in violation of the Free Exercise
Clause. Determining that the U.S. Supreme Court ``has never utilized an
indoctrination test under the Free Exercise Clause, much less in the
public school context,'' the First Circuit did not address ``whether or
not an indoctrination theory under the Free Exercise Clause [was]
sound.'' It did find an ``intent to influence'' the students' point of
view. But ``even assuming there is a continuum along which an intent to
influence could become an attempt to indoctrinate,'' Judge Lynch wrote,
``This case is firmly on the influence-toward-tolerance end.
There is no evidence of systemic indoctrination. There is no
allegation that Joey was asked to affirm gay marriage.
Requiring a student to read a particular book is generally not
coercive of free exercise rights.''
Ibid.
11. See Tinker v. Des Moines Indep. Commun. Sch. Dist., 393 U.S.
503, 506 (1969): ``First Amendment rights, applied in light of the
special characteristics of the school environment, are available to
teachers and students. It can hardly be argued that either students or
teachers shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate. This has been the unmistakable
holding of this Court for almost 50 years.''
12. Pickering v. Bd. of Educ., 391 U.S. 563 (1968). The school
board sought to justify its decision by insisting that the publication
of the letter was ``detrimental to the efficient operation and
administration of the schools'' and that, under relevant Illinois law,
the ``interests of the schools'' required his dismissal.
13. Ibid. at 572.
14. Connick v. Myers, 461 U.S. 138 (1983).
15. 547 U.S. 410 (2006).
16. Ibid. at 421.
17. See generally ibid.
18. And indeed the Connick Court emphasized that it was not in any
way suggesting that speech outside matters of public concern would not
also be protected:
We do not suggest . . . that Myers' speech, even if not
touching upon a matter of public concern, is totally beyond the
protection of the First Amendment. ``The First Amendment does
not protect speech and assembly only to the extent it can be
characterized as political. `Great secular causes, with smaller
ones, are guarded.' '' We, in no sense, suggest that speech on
private matters falls into one of the narrow and well-defined
classes of expression which carries so little social value,
such as obscenity, that the State can prohibit and punish such
expression by all persons in its jurisdiction.''
Ibid. at 147.
19. For some time, now, Federal appeals courts have differed
regarding which Supreme Court decisions may be most directly applicable
to educator speech at the K-12 level. Many have applied Pickering and
Connick directly, noting that Pickering in particular directly
implicates educator speech. Others apply principles from the K-12
student freedom of the press case, Hazelwood v. Kuhlmeier (discussed
supra, in Chapter 2). Some apply principles from both. Pickering is
often viewed as applying to a greater extent to speech outside of the
classroom, focusing more directly on teacher as citizen. Hazelwood, on
the other hand, with its focus on ``legitimate pedagogical concerns''
and the extent to which the speech may ``bear the imprimatur of the
school,'' is often seen as more directly applicable to teacher
expression in a formal classroom setting. Increasingly, however, it has
become possible to reconcile the approaches of the various appeals
court decisions and come up with a broad range of guidelines that
educators would be wise to follow anywhere in the country. See, e.g,
Karen C. Daly, ``Balancing Act: Teachers' Classroom Speech and the
First Amendment,'' 30 Journal of Law & Education 1 (2001). See
generally, R. Weston Donehower, ``Boring Lessons: Defining the Limits
of a Teacher's First Amendment Right to Speak Through the Curriculum,''
102 Michigan Law Review 517 (2003); Ailsa W. Chang, ``Resuscitating the
Constitutional ``Theory'' of Academic Freedom: A Search for a Standard
Beyond Pickering and Connick,'' 53 Stanford Law Review 915 (2001).
20. See, e.g., Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036
(6th Cir. 2001).
21. See ibid. at 1051-1052: ``We believe that the Fourth and Fifth
Circuits . . . [in Boring and Kirkland] . . . have extended the holding
of Connick beyond what the Supreme Court intended . . .''
Even the 2007 decision against an educator in the case of Mayer v.
Monroe County Community School Corp., which some have suggested should
be viewed as an outlier, is not inconsistent with these general
guidelines. In Mayer, 474 F.3d 477 (7th Cir. 2007), a non-tenured
probationary teacher argued that her First Amendment rights had been
violated when she was let go at the end of the 2002-2003 school year
because of comments she had made in a formal classroom session during a
lesson on current events. According to Ms. Mayer, she answered a
pupil's question ``about whether she participated in political
demonstrations by saying that, when she passed a demonstration against
this Nation's military operations in Iraq and saw a placard saying
`Honk for Peace', she honked her car's horn to show support for the
demonstrators.'' The Court found for the school district, and in so
doing stated that ``the school system does not ``regulate'' teachers'
speech as much as it hires that speech. Expression is a teacher's stock
in trade, the commodity she sells to her employer in exchange for a
salary.''
While this decision has been criticized for its characterization of
K-12 teachers as little more than functionaries charged with the
figurative equivalent of playing back recorded messages to their
students, see, e.g., Bob Egelko, `` `Honk for Peace' Case Tests Limits
on Free Speech,'' San Francisco Chronicle, May 14, 2007, the basic rule
articulated by the Court--the teachers must keep to the curriculum in a
formal classroom setting--is not a departure from a guiding principle
that has been in existence for some time now.
In addition, it should be noted that the lower court ruling in the
same case explicitly recognized that teachers interact with students in
a variety of settings and need not limit their conversations in the
same manner that they might be required to do in a formal classroom
setting. Indeed, the Court states that it would be appropriate for the
district to provide ``teachers and students the opportunity to engage
in discussions about the war [in this manner] elsewhere on school
property.'' See 2006 WL 693555 (S.D. Ind.) at *12.
22. As referenced earlier, curricular related speech is sometimes
analyzed under Hazelwood, sometimes under Pickering, and sometimes
under both. It can be argued that non-curricular-related speech
regarding controversial or other political issues falls under Pickering
every time, since Pickering addressed exactly this sort of expression.
And it may very well be the case that day-to-day conversation falls
under neither.
23. The memo goes on to State that the District's multicultural and
human relations education policy includes the expectations that
``[e]ach student has equal access to a quality education and an
opportunity to participate fully in the academic and social activities
of the school,'' and ``School policies and practices act to foster a
climate that reduces fears related to difference and deters name-
calling and acts of violence or threats motivated by hate and
bigotry.'' Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003 at
1005-06 (9th Cir. 2000).
24. ``In recognition that some of the materials can be
controversial in nature,'' the memo further states that ``the
representations on the posters'' were reviewed by, among other groups,
the ``Parent Community Services Branch.'' The Memorandum also
``recognizes that schools are part of a community and must respect the
sentiments held by the local community.'' Ibid. at 1006.
25. See generally Amanda Covarrubias, ``Not So Happily Ever
After,'' Los Angeles Times, March 24, 2004.
26. Ibid.
27. See ibid.
28. The current definition of ``age appropriate'' from the
California Education Code reads as follows: `` `Age appropriate' refers
to topics, messages, and teaching methods suitable to particular ages
or age groups of children and adolescents, based on developing
cognitive, emotional, and behavorial capacity typical for the age or
age group.'' Cal. Ed. Code Section 51931 (2009).
29. See National Conference of State Legislatures, Issues &
Research: Human Services, http://www.ncsl.org/IssuesResearch/
HumanServices/SameSexMarriage/tabid/16430/Default.aspx (accessed 7/19/
09).
30. See infra, Chapter 4, for a detailed analysis of Parker v.
Hurley and its implications.
It must be emphasized, however, that contrary to the assertion in
the `Yes on 8' ad, the First Circuit Court of Appeals never ruled that
the parent plaintiffs ``had no legal right to object.'' Not only is
this language nowhere to be found in the decision, but in fact the
Court made it clear that parents are not powerless, that they can
indeed object by bringing their case to the school board, and that they
can vote out of office any official whose job performance is found to
be lacking. The appellate panel even identified the parameters of an
``indoctrination'' analysis that might be employed by future litigants.
However, the panel concluded that under the facts of this case, no
constitutional violation occurred.
31. See http://www.youtube.com/watch?v=0PgjcgqFYP4 (accessed 7/28/
09).
32. For a detailed examination of K-12 curriculum and pedagogy
issues within the context of conflicting values in the aftermath of
Proposition 8, see generally Douglas NeJaime, ``Inclusion,
Accommodation, and Recognition: Accounting for Differences Based on
Religion and Sexual Orientation,'' 32 Harvard Journal of Law & Gender
303 (2009).
33. Allegations of the existence of a so-called ``homosexual
agenda'' include the aforementioned statements of Justice Scalia in his
Lawrence v. Texas dissent. See also Alan Sears and Craig Osten, The
Homosexual Agenda: Exposing the Principal Threat to Religious Freedom
Today (Nashville, TN: B&H Publishing Group, 2003), a book co-written by
the heads of the Alliance Defense Fund and featured on the Web site of
James Dobson's Focus on the Family. Goals that are allegedly embodied
in this conspiratorial agenda include talking about ``gays and
gayness'' as loudly and as often as possible; portraying gays as
victims, not as aggressive challengers; giving ``homosexual
protectors'' a just cause; making gays look good; making victimizers
look bad; and getting funds from corporate America. See generally ibid.
34. See, e.g., Title VII of the Civil Rights Act of 1964, and the
Americans with Disabilities Act of 1990 (ADA). See also the Age
Discrimination in Employment Act (ADEA).
35.. Glover v. Williamsburg Local School District, 20 F. Supp. 2d
1160 (S.D. Ohio 1998).
36. Ibid. at 1165.
37. Ibid. at 1169, 1174-75. The Court quoted here from Romer v.
Evans:
``If the constitutional conception of `equal protection of
the laws' means anything, it must at the very least mean that a
bare . . . desire to harm a politically unpopular group cannot
constitute a legitimate governmental interest.''
38. See ibid. . . . at 1174:
Perhaps the Board feared that a gay teacher would act
inappropriately or somehow be a troublemaker. Or perhaps the
Board was responding to perceived disapproval in the community
of having a gay teacher at Williamsburg. Regardless of the
Board's reasoning, Glover had established that he was an above
average first-year teacher who was more qualified than the
woman chosen by the Board to replace him. . . . [And
additional] evidence introduced at trial supports a finding
that the Board's decision was motivated by animus towards him
as a homosexual.
39. Weaver v. Nebo School District, 29 F. Supp. 2d 1279, 1280-1281
(D. Utah 1998).
40. Ibid. at 1285, 1287.
41. Ibid. at 1287-89. The Court added the following:
The record now before the court contains no job-related
justification for not assigning Ms. Weaver as volleyball coach.
Nor have the defendants demonstrated how Ms. Weaver's sexual
orientation bears any rational relationship to her competency
as teacher or coach, or her job performance as coach--a
position she has held for many years with distinction.
42. In fact, a later State suit on this matter brought by a
citizens group was dismissed by the Supreme Court of Utah, with Weaver
winning all court costs. Miller v. Weaver, 2003 UT 12.
43. See Evelyn Nieves, ``After Sex Change, Teacher Is Barred From
School,'' New York Times, Sept. 27, 1999.
44. See ibid. See also Marvin Dunson III, ``Sex, Gender, and
Transgender: The Present and Future of Employment Discrimination Law,''
22 Berkeley Journal of Employment & Labor Law 465 (2001).
45. ``One parent stood up at a board meeting and said that her
daughter was traumatized,'' Mr. Bender said. ``But right after that,
her daughter stood up and told the board that her mother was wrong.''
Nieves, Teacher Is Barred.
46. Ibid.
47. On an annual District staff day in September 1999, 200 District
teachers--along with 40 students--held a lunchtime rally for Ms. Rivers
across the street from the District offices. But the school board
majority ignored this show of support and voted for dismissal.
``I didn't have to send a letter to everyone telling them what I
was doing,'' Ms. Rivers said. ``I could have just walked into school.
But what confusion would that have led to? '' See ibid.
48. See Cynthia Hubert, ``Being Herself: Dana Rivers Has a New
Home, a New Campus--and a New Life as a Woman,'' Sacramento Bee,
November 14, 2001.
49. See ibid. See also Helen Y. Chang, ``My Father Is a Woman, Oh
No!: The Failure of the Courts to Uphold Individual Substantive Due
Process Rights for Transgender Parents under the Guise of the Best
Interests of the Child,'' 43 Santa Clara Law Review 649 (2003).
50. Morrison v. State Bd. of Educ., 1 Cal. 3d 214 (1969).
51. Ibid. at 218-19.
52. ``Neither sodomy (Pen. Code Sec. 286), oral copulation (Pen.
Code Sec. 288a), public solicitation of lewd acts (Pen. Code Sec. 647,
subd. (a)), loitering near public toilets (Pen. Code Sec. 647, subd.
(d)), nor exhibitionism (Pen. Code Sec. 314) were involved. Conviction
of such offenses would have resulted in the mandatory revocation of all
diplomas and life certificates issued by the State Board of
Education.'' Ibid. at 218, n.4.
53. After the affair had been disclosed, Morrison resigned his
position with the District. The record does not indicate what
transpired between him and his employers, but at the time a common
practice involving acts appearing to fall under the category of
``immoral or unprofessional'' was that employees would be suspended
without pay pending the results of an investigation, and if the
allegations were true they would ultimately be presented with the
choice of either resigning or being dismissed.
54. It is important to note that these events happened before the
Stonewall riots and long before specific statutory protections for LGBT
individuals were in place, even in California. Admitting one's
homosexuality would have been a radical step in the early 1960s,
especially for a person seeking to retain a public position such as
teaching.
55. In a particularly poignant footnote, Justice Tobriner stated:
The problem of ascertaining the appropriate standard of
``morality'' was aptly put in Robert N. Harris, Jr., Private
Consensual Adult Behavior: The Requirement of Harm to Others in
the Enforcement of Morality, 14 UCLA L. Rev. 581, 582 & n.4.
``[I]n a secular society--America today--there may be a
plurality of moralities. Whose morals shall be enforced? . . .
There is a tendency to say that public morals should be
enforced. But that just begs the question. Whose morals are the
public morals? '' Ibid. at 227, n.19.
56. The Court concluded that the terms themselves are capable of
multiple interpretations even within the same community, and noted that
``[i]n the opinion of many people laziness, gluttony, vanity,
selfishness, avarice, and cowardice constitute immoral conduct.'' Ibid.
at 225-26.
57. The Court explained that in determining whether particular
conduct indicated unfitness to teach, a board may consider such matters
as ``the likelihood that the conduct may have adversely affected
students or fellow teachers,'' the degree of such adverse effect, the
``remoteness in time'' of the conduct, any extenuating or aggravating
circumstances, the praiseworthiness or blameworthiness of the teacher's
motives, and the likelihood of the conduct's recurrence. Examining the
circumstances surrounding Morrison's brief affair under this framework,
the Court found ``no evidence'' whatsoever that his conduct ``indicated
his unfitness to teach.'' Ibid. at 229, 236.
58. For example, in 1976, the Colorado Supreme Court explicitly
cited the language in Morrison when discussing the definition of
``immorality'' in that State's teaching regulations. The court held
that any immorality that would force a teacher from his position be
directly related to his unfitness to teach. Weissman v. Board of
Education, 190 Colo. 414, 420-21 (1976).
59. Exec. Order No. 10,450, Sec. 8, 18 Fed. Reg. 2489 (1953).
60. See, e.g., David K. Johnson, The Lavender Scare: The Cold War
Persecution of Gays and Lesbians in the Federal Government (Chicago:
University of Chicago Press, 2004).
61. It should be noted that at the Federal level--as of late 2009--
there was still no explicit statutory protection against discrimination
on the basis of LGBT status. The Employment Non-Discrimination Act
(ENDA) was first introduced in Congress in 1994 as an important step
toward addressing this issue, but it has not yet received sufficient
support to pass. See, e.g., Arthur S. Leonard, ``Sexual Minority Rights
in the Workplace,'' 43 Brandeis Law Journal 145 (2004-2005).
President Obama promised, during the 2008 campaign, to support the
passage of ENDA, and committed to including protections against both
discrimination on the basis of sexual orientation and discrimination on
the basis of gender identity. This commitment was reaffirmed during the
first year of his presidency. See generally ``The White House: Issues--
Civil Rights,'' http://www.whitehouse.gov/issues/civil_rights/
(accessed 7/29/09):
President Obama also continues to support the Employment Non-
Discrimination Act and believes that our anti-discrimination
employment laws should be expanded to include sexual
orientation and gender identity. He supports full civil unions
and Federal rights for LGBT couples and opposes a
constitutional ban on same-sex marriage. He supports repealing
Don't Ask Don't Tell in a sensible way that strengthens our
armed forces and our national security, and also believes that
we must ensure adoption rights for all couples and individuals,
regardless of their sexual orientation.
Although the Gallup Poll, consistent with other surveys, still
shows that a substantial number of Americans are conflicted regarding
whether LGBTs should be hired as public school teachers, fully 89
percent agreed in 2008 with the statement that ``homosexuals should
have equal rights in terms of job opportunities.'' Only
8 percent disagreed. http://www.gallup.com/poll/1651/Gay-Lesbian-
Rights.aspx (accessed 7-23-09).
62. See Statewide Employment Laws and Policies, Human Rights
Campaign, July 7, 2009, http://www.hrc.org/documents/
Employment_Laws_and_Policies.pdf (accessed 7/14/09). The numbers in
parentheses indicate the most recent year(s) when relevant statutory
changes were made.
63. See ibid.
64. See Human Rights Campaign, State Laws Listing, State by State,
http://www.hrc.org/laws_and_elections/state.asp (accessed 7/15/09).
65 See generally Kitty Krupat & Patrick McCreery, eds., Out at
Work: Building a Gay-Labor Alliance (Minneapolis: University of
Minnesota Press, 2000).
66. Schroeder v. Hamilton School District, 282 F.3d 946 (7th Cir.
2002).
67. Ibid. at 948-949. In another incident consistent with these
actions by District officials, the Superintendent herself failed to
intervene when--during a meeting with Schroeder--a student directed an
anti-gay slur at him right in front of her eyes. Ibid.
68. See ibid.
69. Ibid. at 952, 954-955.
70. The questionable reasoning set forth by Judge Posner to justify
protecting gay teachers ``less assiduously'' than others included the
following contentions (in his own words): (1) ``it is not irrational to
prioritize protective activities''; thus, ``if race relations are a
particularly sensitive area in a particular school, the school
authorities are not irrational in deciding to devote more time to
defusing racial tensions than to preventing harassment of a homosexual
(or overweight, or undersized, or nerdish, or homely) teacher''; (2)
``when most of the abuse is anonymous, the school authorities may be
unable to prevent it without a disproportionate commitment of resources
. . . or a disproportionate curtailment of student rights''; ``a public
school's primary commitment is to its students, not to its teachers,
and this limits the extent to which it must use police tactics to deal
with nonviolent . . . harassment of a teacher''; and (3) ``the school
authorities' options are limited by an understandable reticence about
flagging issues of sex for children . . . [which will make them]
prematurely preoccupied with issues of sexuality.'' Ibid. at 957-958.
71. Ibid. at 961 (Wood, J., dissenting).
72. California Education Code Section 44807, for example, states
that ``[e]very teacher in the public schools shall hold pupils to a
strict account for their conduct on the way to and from school.''
In the Federal courts, recent cases have found that school
officials have increasingly broad power to hold students accountable
for their expression outside of the school setting, online or offline,
that may have an impact on day-to-day affairs within a school
community. See, e.g., Wisniewski v. Bd. of Educ. of the Weedsport Cent.
Sch. Dist., 494 F.3d 34 (2nd Cir. 2007); Doninger v. Niehoff, 527 F.3d
41 (2nd Cir. 2008).
73. The Assistant Principal herself conceded to Schroeder that she
would have handled allegations of sexual harassment by a female teacher
differently than she had handled his complaints.
74. Ibid. at 958.
75. Under the Equal Protection Clause of the Fourteenth Amendment,
intentional discrimination on the basis of race or the infringement of
a fundamental right are subject to strict scrutiny. Intentional
discrimination on the basis of gender or ``illegitimacy'' typically
merits an intermediate level of scrutiny, while all other
discrimination between and among groups similarly situated generally
merits no more than rational basis review. Discrimination on the basis
of sexual orientation has traditionally fallen into the rational basis
category, with great deference given to lawmakers, policymakers, and
practitioners on a day-to-day level. Yet LGBT plaintiffs have begun to
prevail even under rational basis review.
Over the past several years, there has been significant movement on
this front, with both Federal and State courts considering whether a
heightened level of judicial review is warranted for sexual orientation
discrimination.
In Witt v. Dept. of Air Force, 527 F.3d 806 (9th Cir. 2008), for
example, the Ninth Circuit determined that not only was the Lawrence
ruling applicable to a former Air Force major's challenge to ``Don't
Ask, Don't Tell,'' but that ``Lawrence requires something more than
traditional rational basis review.'' Ibid. at 819. In Perry v.
Schwarzenegger, No. 09-CV-2292 VRW (2009), the Federal lawsuit
challenging the constitutionality of California Proposition 8 under the
Fourteenth Amendment, plaintiffs argue that the ballot initiative must
be reviewed with strict scrutiny because it both impairs a fundamental
right and discriminates on the basis of sexual orientation. At the same
time, plaintiffs also assert that Proposition 8 does not even withstand
rational basis review, let alone strict scrutiny. Plaintiffs' Notice of
Motion and Motion for a Preliminary Injunction, and Memorandum of
Points and Authorities in Support of Motion for a Preliminary
Injunction, Perry v. Schwarzenegger (May 27, 2009). A trial on this
matter was pending as of late summer 2009 in the U.S. District Court,
Northern District of California, in front of Chief Judge Vaughn Walker.
At the State court level, in May 2008, the California Supreme Court
became the first court in the land to recognize strict scrutiny for
discrimination against gays and lesbians. In Re Marriage Cases, 43
Cal.4th 757, 840-841; 76 Cal.Rptr.3d 683, 751 (2008). A year later,
upholding the constitutionality of Proposition 8 under California State
law, Chief Justice Ronald George reaffirmed that in California,
``Statutes according differential treatment on the basis of
sexual orientation are subject to the strict scrutiny standard
of review. . . . [W]ith respect to the . . . designation of the
word `marriage,' Proposition 8 does change the rule, [but it] .
. . must be understood as creating a limited exception . . .
[that] does not alter the general equal protection principles .
. . Those principles continue to apply in all other contexts.''
Strauss v. Horton, 46 Cal.4th 364, 411-412; 93 Cal.Rptr.3d 591, 627
(2009).
In 2009, the Iowa Supreme Court ruled unanimously that prohibiting
same-sex marriage violated the Iowa Constitution, and in so doing it
agreed with a 2008 Connecticut Supreme Court decision holding that
discrimination on the basis of sexual orientation warranted a
heightened level of judicial review. Varnum v. Brien, 763 N.W.2d 862,
889-896 (2009).
Of particular interest within the larger context of this book is
the Iowa Court's analysis of immutability as a factor that would
support a finding of heightened scrutiny. The Court concluded that it:
``need not definitively resolve the nature-versus-nurture
debate currently raging over the origin of sexual orientation
in order to decide plaintiffs' equal protection claims. . . .
[W]e agree with those courts that have held the immutability
``prong of the . . . inquiry surely is satisfied when . . . the
identifying trait is `so central to a person's identity that it
would be abhorrent for government to penalize a person for
refusing to change [it].' '':
In this case, the County acknowledges sexual
orientation is highly resistant to change.
Additionally, ``sexual orientation `forms a significant
part of a person's identity.' '' Sexual orientation
influences the formation of personal relationships
between all people--heterosexual, gay, or lesbian--to
fulfill each person's fundamental needs for love and
attachment. Accordingly, because sexual orientation is
central to personal identity and ``may be altered [if
at all] only at the expense of significant damage to
the individual's sense of self,'' classifications based
on sexual orientation ``are no less entitled [to be
reviewed under heightened scrutiny] . . . than any
other group that has been deemed to exhibit an
immutable characteristic.''
Ibid. at 893.
76. Schroeder, 282 F.3d at 961. Not only did the panel majority
understate the case by refusing to acknowledge either the existence or
the impact of the outright hostility toward gays in this setting, but
at times it appeared to be justifying the very hostility that it would
not acknowledge. Judge Posner, for example, stated that the District's
tepid response to Schroeder's complaints ``may have been influenced by
the hostility of some parents to the idea of their kids' being taught
by a homosexual,'' a statement that implicitly lends credence to such a
parental view. And Judge Manion actually suggested that religious views
could justify such hostility.
77. Twenty-five of our fifty States (but not Wisconsin) had anti-
sodomy laws at the time Schroeder began teaching in 1990. In 2002, when
the Court decided against Schroeder, such activity was ostensibly legal
in the Seventh Circuit States of Wisconsin and Illinois, but still
illegal right next door in Michigan, Missouri, the neighboring States
of Kansas, Oklahoma, and Texas, and in eight other States across the
land. American Civil Liberties Union, ``Getting Rid of Sodomy Laws:
History and Strategy that Led to the Lawrence Decision,'' (2003),
www.aclu.org (accessed 3/12/07).
78. See, e.g., Milligan-Hitt v. Board of Trustees of Sheridan
County School Dist. No. 2, 2008 WL 1795068 (10th Cir. 2008), upholding
a rural Wyoming school district's ostensible demotion in 02-03 of two
principals who were living together as a lesbian couple, even in light
of acknowledged anti-gay animus presented into evidence, but at the
same time expressly situating the facts implicating the qualified
immunity analysis in the pre-Lawrence era:
Although the district court found that there were genuine
issues of material fact as to whether Mr. Dougherty's actions
had been unconstitutional, it held that the law governing
discrimination on the basis of sexual orientation had not been
clearly established in 2002 and early 2003, before the Supreme
Court's decision in Lawrence v. Texas, which arguably clarified
the issue. Ibid. at *3.
79. See generally Nan D. Hunter, ``Living with Lawrence,'' 88
Minnesota Law Review 1103 (2004); Pamela S. Karlan, ``Loving
Lawrence,'' 102 Michigan Law Review 1447 (2004); Laurence H. Tribe,
``Lawrence v. Texas: The `Fundamental Right' That Dare Not Speak Its
Name,'' 117 Harvard Law Review 1893 (2004).
80. Albright v. Morton, 321 F. Supp. 2d 130, 136-38 (D. Mass.
2004).
______
Women's Law Project,
Philadelphia, PA 19107,
November 5, 2009.
Hon. Tom Harkin, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
731 Hart Senate Office Building,
Washington, DC 20510.
Hon. Mike Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
379A Russell Senate Office Building,
Washington, DC 20510.
Dear Chairman Harkin and Ranking Member Enzi: On behalf of the
eleven undersigned organizations, we write to express our support for
S. 1584, the Employment Non-Discrimination Act (ENDA). The passage of
ENDA would provide lesbian, gay, bisexual, and transgender (LGBT)
individuals with long overdue protection against discrimination in the
workplace. Additionally, ENDA would preclude defendants from using the
presence of sexual orientation- or gender identity-based claims to
shield otherwise actionable title VII sex stereotype discrimination
claims.
LGBT employees often face discrimination based on their failure to
conform to sex stereotypes, discrimination that is rooted in
stereotypes about how men and women ``should'' look, sound, or behave
and about how their bodies ``should'' appear. But there is no question
that discrimination based on sex stereotypes is unlawful. It is well
settled that title VII's prohibition on sex discrimination proscribes
discrimination based on gender stereotypes. The U.S. Supreme Court held
long ago in Price Waterhouse v. Hopkins that the failure to promote a
female employee based on her variation from prevalent stereotypes about
women was an actionable sex discrimination claim under title VII. 490
U.S. 228, 250 (1989). A similar prohibition on sex stereotype
discrimination by government actors exists under the Federal Equal
Protection Clause. In United States v. Virginia, the Supreme Court held
that gender-based government action must pass heightened scrutiny and
cannot be based on ``overbroad generalizations about the different
talents, capacities, or preferences of males and females.'' 518 U.S.
515, 533 (1996).
Yet defendant employers continue to argue to courts that sex
stereotype discrimination claims under title VII do not apply where
there is also discrimination based on sexual orientation or gender
identity. Many courts have correctly rejected those arguments and
recognized actionable sex stereotype discrimination regardless of an
employee's sexual orientation or gender identity. For example, just 2
months ago, the U.S. Court of Appeals for the Third Circuit reversed a
district court's finding that a self-described ``effeminate'' gay man
could not proceed with his title VII claim because he was merely
asserting a sexual orientation discrimination claim ``repackaged as a
gender stereotyping claim.'' Prowel v. Wise Business Forms, Inc. . . .
F.3d . . ., 2009 WL 2634646, at *6 (3d Cir. Aug. 28, 2009). Instead,
the court found that the plaintiff ``was harassed because he did not
conform to [his employer's] vision of how a man should look, speak, and
act--rather than harassment based solely on his sexual orientation.''
Id. And a district court in Georgia recently denied a motion to dismiss
a title VII claim brought by a transgender State Government employee,
finding that ``it is now well-established in Federal law that
discrimination based on the failure of an individual to conform to
sexual stereotypes is a form of sex discrimination.'' Glenn v. Brumby,
. . . F. Supp. 2d . . ., 2009 WL 1849951, at *6 (N.D. Ga. June 25,
2009).
Some courts, however, have been misguided by defendants' arguments
and dismissed valid claims of discrimination against LGBT employees
based on sex stereotypes by construing them as claims of discrimination
based solely on sexual orientation or gender identity. In a number of
cases, for example, courts have discounted valid evidence of sex
stereotyping because the language used in the harassment also referred
to the plaintiffs sexual orientation. See, e.g, Trigg v. New York City
Transit Authority, C.A. No. 99-CV-4730, 2001 WL 868336 (E.D.N.Y., July
26, 2001). Other courts have incorrectly dismissed title VII sex
stereotype claims because of a plaintiff 's transgender status. See,
e.g., Oiler v. Winn-Dixie Louisiana, Inc., No. Civ. A. 0093114, 2002 WL
31098541 (E.D. La. Sept. 16, 2002). Enacting ENDA's explicit protection
against discrimination based on sexual orientation and gender identity
would curtail defendants' ability to confuse the issues in this way and
to persuade courts that valid title VII sex stereotype claims should be
dismissed merely because the plaintiff is (or is perceived to be) an
LGBT individual.
Ensuring that American workplaces are free of sex discrimination,
including discrimination based on gender stereotypes, is vital to
achieving true gender equity in the workplace. We urge Congress to pass
ENDA, to give LGBT employees the workplace equality they need and
deserve, and to preclude defendants from misguiding courts to dismiss
actionable claims of impermissible sex stereotyping because of the
concurrent existence of sexual orientation- or gender identity-based
discrimination.
Sincerely,
Susan Frietsche,
Women's Law Project,
425 Sixth Avenue, Suite 1860,
Pittsburgh, PA 15219.
Rachael N. Pine,
Executive Vice President and Director, Legal Department,
Legal Momentum,
395 Hudson Street, 5th Fl.,
New York, NY 10014.
Fatima Goss Graves,
Vice President for Education and Employment,
Lara S. Kaufmann,
Senior Counsel,
National Women's Law Center,
11 Dupont Circle, Suite 800
Washington, DC 20036.
Jayne Vellinga,
Director of Programs,
Chicago Women in the Trades,
4425 S. Western, Rear,
Chicago, IL 60609.
Barbara J. Ratner,
President,
Clearinghouse on Women's Issues,
10401 Grosvenor Place #917,
Rockville, MD 20852.
Janet Kopenhaver,
Washington Representative,
Federally Employed Women,
700 N. Fairfax Street #510,
Alexandria, VA 2314.
Shelley A. Gregory,
Senior Staff Attorney,
The Legal Aid Society--Employment Law Center,
600 Harrison Street, Suite 120,
San Francisco, CA 94107.
David Ward,
Legal and Legislative Counsel Legal Voice,
907 Pine Street,
Seattle, WA, 98101.
Aleli Samson,
Policy Director,
National Asian Pacific American Bar Association,
1612 K St. NW, Suite 1400,
Washington, DC 20006.
Jane Wishner,
Executive Director,
Southwest Women's Law Center,
1410 Coal Avenue SW,
Albuquerque, NM 87104.
Susan Rees,
Director of National Policy and Projects,
Wider Opportunities for Women,
1001 Connecticut Avenue, NW,
Suite 930,
Washington, DC 20036.
Letter of Opposition
Americans United (AU),
November 4, 2009.
Hon. Tom Harkin, Chairman,
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC 20510.
Re: Do Not Expand the Religious Exemption in S. 1584, the Employment
Non-
Discrimination Act of 2009
Dear Chairman Harkin: We are writing on behalf of Americans United
for Separation of Church and State to urge you to resist any effort to
further expand the religious exemption contained in S. 1584, the
Employment Non-Discrimination Act of 2009 (ENDA). Although we would
prefer a more narrow exemption than the one currently in S. 1584--one
that would require a religious organization to profess a religious
justification for engaging in discrimination based on sexual
orientation or gender identity for a particular job position in order
to obtain the exemption--we are willing to accept the current exemption
so long as it is not further expanded. Below, we seek to explain the
breadth of the current religious exemption and to set out why use of
the title VII exemption in ENDA is understandable and would provide for
legal consistency to employers and employees.
Founded in 1947, Americans United is a non-partisan, non-profit
membership organization dedicated to preserving the constitutional
principle of church-state separation in order to ensure religious
freedom for all Americans. Americans United recognizes the importance
of providing certain religious exemptions, such as the one that applies
to privately-funded jobs under Title VII of the Civil Rights Act of
1964, as amended. When drafting such exemptions, however, Congress must
find the proper and delicate balance between the interests of religious
organizations and the civil rights of individuals. In extending the
religious exemption to those organizations that already receive an
exemption under title VII, Congress is close to the proper balance. But
expanding it to include a broader array of organizations--even
religious business owners engaged in commerce--not only disturbs that
delicate balance, but could nearly swallow the bill's protections
against sexual orientation and gender identity discrimination entirely.
THE BREADTH OF THE EXEMPTION
Section 6 of S. 1584 grants religious organizations a blanket
exemption from ENDA. It states simply and clearly that ``[t]his Act
shall not apply'' to certain religious organizations. It also clearly
defines those exempt religious organizations as all of those
organizations that are permitted to discriminate on the basis of
religion under sections 702(a) and 703(e)(2) of title VII. Simply put,
if the religious organization may discriminate on the basis of religion
under Title VII of the Civil Rights Act, the organization may also
discriminate on the basis of sexual orientation and gender identity
under ENDA. There is no ambiguity or lack of clarity.
Whether a religious organization meets the definition provided
under section 702 of the Civil Rights Act is usually clear. EEOC v.
Townley Eng'g & Mfg. Co., 859 F. 2d 610, 618 (9th Cir. 1988). In cases
where the determination is less clear cut, the court engages in a fact-
specific inquiry to determine whether the organization's purpose and
character are primarily religious. Id.; Killinger v. Samford Univ., 113
F. 3d 196, 200 (9th Cir. 1988). The outcomes of these inquiries have
been consistent and reasonably predictable. For example, the courts
have drawn a distinction between religious individuals who own for-
profit business and institutions that designates their chief purpose as
providing religious instruction.\1\
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\1\ Compare Townley, 859 F. 2d at 619 (``[T]he beliefs of the
owners and operators or corporations are simply not enough in
themselves to make the corporation `religious' within the meaning of
section 702.'') with Killinger, 113 F. 3d at 200 (applying Section
702(a) to determine that ``a teaching job in a divinity school of a
religious educational institution is at the core of the section 702
exemption: the inherent purpose of such schools is the stuff of God and
God's attributes.'')
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The exemption for religious educational institutions under 703(e)
(2) of title VII is similarly employed. EEOC v. Kamehameha Schools/
Bishop Estate, 990 F.2d 458 (9th Cir. 1993) (examining six factors in
its fact-based inquiry). The courts engage in a fact-based analysis to
determine whether the exemption applies.
EXPANDING THE TITLE VII EXEMPTION FOR ENDA WOULD CREATE CIVIL RIGHTS
HARM AND LEAD TO NONSENSICAL RESULTS
Using the title VII exemption to define which religious
organizations receive the exemption is understandable, as the case law
defining the meaning of sections 702(a) and 703(e)(2) is vast, well
understood, and has served religious organizations' institutional
interests well for the last several decades.
Some contend that an even broader definition of ``religious
organization'' should be used in ENDA. But defining the organizations
provided the exemption in a broader way under ENDA than in title VII
would create inconsistencies across civil rights statutes, resulting in
confusion for both employers and employees. Under such a scenario, a
religious organization would have to comport to one legal standard to
determine whether it is exempt from the prohibition against religious
discrimination and an even broader legal standard to determine whether
it is exempt from ENDA. The end result could be that the organization
could be permitted to discriminate for particular job positions on the
basis of sexual orientation and gender identity, but not on the basis
of religion. Such a result is nonsensical--if the religious identity of
the organization is not strong enough to justify religious
discrimination, how could it then justify discrimination on the basis
of sexual orientation or gender identity?
Applying a unitary legal standard--no broader than what has existed
for decades under title VII--reduces confusion and inconsistency and
eliminates nonsensical results.
CONCLUSION
The religious exemption as currently drafted in ENDA--a blanket
exemption--is sufficiently broad and sufficiently defined using title
VII's definition and decades of case law. There is no legitimate reason
to expand the exemption further, unless the goal is to erode the reach
of ENDA itself. The scope of title VII's religious exemptions have
served the interests of religious organizations well and they should be
sufficiently clear to provide consistency to employers and employees in
delineating which religious organizations will be exempt from ENDA's
important protections.
Sincerely,
Aaron D. Schuham,
Legislative Director.
Maggie Garrett,
Assistant Legislative Director.
______
U.S. Department of Justice,
Washington, DC 20539,
January 15, 2010.
Hon. Tom Harkin, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Dear Mr. Chairman: Please find enclosed responses to questions
arising from the appearance of Assistant Attorney General Thomas E.
Perez before the committee on November 5, 2009, at a hearing entitled
``Employment Non-Discrimination Act: Ensuring Opportunity for All
Americans.'' We hope that information is of assistance to the
committee. Please do not hesitate to call upon us if we may be of
additional assistance. The Office of Management and Budget has advised
us that there is no objection to submission of this letter from the
perspective of the Administration's program.
Sincerely,
Ronald Weich,
Assistant Attorney General.
______
Response to Questions of Senator Enzi by Thomas E. Perez
Question 1. In the absence of a specific employment protection for
sexual orientation, some courts have interpreted title VII to provide
such protection. If ENDA is enacted, is it your view that the existing
bill would allow a successful plaintiff filing claims under both title
VII and ENDA for the same alleged wrongful conduct could obtain a dual
recovery? If not, why does it contain a provision specifically
providing that it does not invalidate or limit the rights, remedies, or
procedures available under any other law or regulation? Why would such
a result be warranted? What changes could be made to the bill to
eliminate the possibility of such a dual recovery?
Answer 1. As the Supreme Court has recognized, taking adverse
action against an employee based on sex-stereotyping is prohibited as
part of title VII's prohibition on sex discrimination. This specific
type of claim arises when an employer discriminates against an
individual who does not conform to the gender stereotypes associated
with his or her sex (e.g., when a female dresses or acts in a perceived
masculine manner), as in PriceWaterhouse v. Hopkins, 490 U.S. 228
(1989). ENDA prohibits discrimination based on actual or perceived
sexual orientation or gender identity--'' gender-related identity,
appearance, or mannerisms or other gender-related characteristics of an
individual's designated sex at birth.'' Thus, a claim of sexual
orientation and/or gender identity discrimination under ENDA may
overlap with a sex-stereotyping claim under title VII to the extent
that the discrimination against an individual is based on the
individual's failure to conform to the gender-related appearance,
mannerisms or stereotypes associated with his or her sex. However,
Federal courts have refused to extend the sex-stereotyping theory to
title VII cases of discrimination based strictly on sexual orientation.
As a result, ENDA is necessary to provide protection against
discrimination based specificaIIy on sexual orientation, irrespective
of whether individuals conform with their designated gender
stereotypes.
Like title VII, ENDA seeks to provide for make-whole relief for
victims of employment discrimination. If supported by the facts, a
plaintiff hypothetically could bring a title VII claim under a sex-
stereotyping theory and an ENDA claim, but if enacted, ENDA would not
allow this plaintiff, if successful, to obtain a double recovery for
the same alleged wrongful conduct. First, any back pay award is limited
by the amount that would have been paid to the plaintiff in the absence
of discrimination; an individual may not recover multiple awards of
back pay regardless of the number or type of violations plead. In
addition, the Supreme Court has long held that Federal courts ``can and
should preclude double recovery by an individual'' in Federal
employment discrimination suits. General Telephone Co. of Northwest v.
EEOC, 446 U.S. 318,333 (1980); see also EEOC v. Wafffle House, Inc.,
534 U.S. 279, 297 (2002). Accordingly, Federal courts use their wide
discretion to limit equitable relief and, where appropriate, to
instruct juries to avoid providing double recovery when awarding
compensatory and punitive damages. See, e.g., Reynolds v. Octel
Communications Corp., 924 F. Supp. 743,747 (N.D. Tex. 1995) (plaintiff
not entitled to receive both punitive damages under title VII and
liquidated damages under the ADEA). Thus, in the above example, a court
following these principles would limit the specific remedial relief
(e.g., reinstatement, back pay, compensatory damages) awarded by a
Federal court to a successful plaintiff alleging both title VII and
ENDA claims to the amount necessary to make that individual whole and
avoid duplication of remedies.
Also, like title VII, ENDA has a provision describing the act's
relationship to other laws. Section 15 of ENDA expressly states that:
``The Act shall not invalidate or limit the rights, remedies,
or procedures available to an individual claiming
discrimination under any other Federal law or regulation or any
law or regulation of a State or political subdivision of a
State.''
This provision does not suggest that dual recovery is permitted
under ENDA. Rather, it serves as a clear statement that ENDA neither
restricts nor supplants existing Federal or State protections against
discrimination. This amplification is important for several reasons.
For example, the provision acts to preserve the limited, but well-
established, case law regarding sex-stereotyping as a form of
discrimination under title VII. It also affirms that a gay, lesbian,
bisexual or transgender plaintiff may bring separate viable claims
under both title VII and ENDA, e.g., a lesbian plaintiff may be
harassed because she is a woman and denied a promotion because she is a
lesbian. This approach, of course, mirrors those that apply under other
anti-discrimination laws; an individual who is subjected to
discrimination based both on race and on age may file separate claims
under title VII and the ADEA. In addition, while ENDA does not permit
disparate impact claims, individuals may bring such claims based on
sexual orientation under some State laws.
In sum, well-established law eliminates the possibility of double
recovery under both title VII and ENDA and nothing in ENDA suggests
otherwise. As such, I recommend no changes to the legislation in this
respect.
Question 2. It has been stated that individuals protected under
ENDA would actually have access to greater remedies than those
protected under title VII by way of their race, color, religion, sex or
national origin, or under the ADA by way of disability. Namely, ENDA
claimants could recover attorney and other fees from administrative
proceedings, including an EEOC determination. EEOC decisions are not
considered ``final orders'' and so are not subject to appeal.
Therefore, an employer would not be able to contest any such award and,
in fact, the EEOC is not even required to provide documented reasons
for its decisions. Do you believe that plaintiffs alleging
discrimination based on sexual orientation and sexual identity should
be entitled to greater remedies than other title VII and ADA
plaintiffs? Why would it be appropriate to deprive employers of their
due process rights to contest attorney's fees awards solely for
plaintiff 's alleging discrimination based on sexual orientation and
sexual identity? What changes could be made to the bill to ensure that
ENDA claimants are treated the same as all other discrimination
claimants in terms of potential recovery?
Answer 2. The Supreme Court has long held that Federal courts may
award reasonable attorneys' fees to prevailing plaintiffs for work done
in connection with certain administrative proceedings specified under
title VII. See New York Gus Light Club, Inc. v. Carey, 447 U.S. 54
(1980). In this respect, permitting an award of reasonable attorneys'
fees for work done in connection with certain administrative
proceedings under ENDA is fully consistent with well-established law
under both title VII and the ADA, and thus would not provide plaintiffs
alleging discrimination based on sexual orientation or gender identity
with any greater remedies than plaintiffs alleging discrimination under
title VII or the ADA.
Section 12 of ENDA basically tracks the language in section 706(k)
of title VII, except that title VII provides that a Federal court, in
its discretion, may award reasonable attorneys' fees to a prevailing
party, while ENDA vests that authority and discretion in specific
entities described in section 10(a) of the act. These entities include
the EEOC, the Library of Congress, the Board of Directors of the Office
of Compliance, the Merit System's Protection Board, the President, and
the Federal courts. It is our understanding that the above-enumerated
entities (excluding the Federal courts) currently have authority and
discretion to award reasonable attorneys' fees in their respective
administrative proceedings (e.g., title VII authorizes the EEOC to
award reasonable attorneys' fees in the Federal sector process), where
employers may exercise their due process rights to contest such awards.
To the extent that Section 12 of ENDA could be read to suggest that the
EEOC has authority to award reasonable attorneys' fees outside of the
Federal sector process (i.e., in the private sector and State and local
government processes), the language could be clarified to be consistent
with title VII and the ADA--that is, to make clear that each of the
above-enumerated entities has the same power to award reasonable
attorneys' fees as each entity already has under the statutes
identified in Section 10(a) of ENDA (e.g., title VII and GERA for the
EEOC, the Congressional Accountability Act for the Board of Directors
of the Office of Compliance).
Question 3. In addition to prohibiting discrimination in employment
on the basis of gender identity, ENDA places affirmative obligations on
employers with regard to shared shower or dressing facilities in which
being seen unclothed is unavoidable for individuals who have either
``undergone'' or who are ``undergoing'' transition to a different
gender. The bill text leaves employers with a great deal of questions
about how this requirement would work. Specifically, employers wonder
what would constitute ``notification'' that private dressing and shower
facilities will be required? Would the requirement also extend to
bathroom facilities? The bill states that no new facilities would be
required, but would employers be required to renovate existing
facilities?
Answer 3. Section 8(a)(3) of ENDA states that it is not unlawful to
deny
``access to shared shower or dressing facilities in which being
seen unclothed is unavoidable, provided that the employer
provides reasonable access to adequate facilities that are not
inconsistent with the employee's gender identity as established
with the employer at the time of employment or upon
notification to the employer that the employee has undergone or
is undergoing gender transition, whichever is later.''
The notification required by ENDA relates to the individual
advising the employer that the individual has undergone or is
undergoing gender transition. The notification may be oral or in
writing. The bill does not require any new construction of private
dressing or shower facilities. Rather, the employer's obligation is to
provide reasonable access to adequate shower or dressing facilities
that are consistent with the employee's gender identity, once notice is
given. The language in this section does not mention bathroom
facilities.
Section 8(a)(4) states that ``[n]othing in this Act shall be
construed to require the construction of new or additional
facilities.'' As stated above, the requirement is for an employer who
is on notice to provide an employee with reasonable access to shower or
dressing facilities consistent with the employee's gender identity.
Providing ``reasonable access'' does not amount to or equate with an
obligation to renovate shower or dressing facilities.
Response to Questions of Senator Enzi by Helen Norton
Question 1. In the absence of a specific employment protection for
sexual orientation, some courts have interpreted title VII to provide
such protection. If ENDA is enacted, is it your view that the existing
bill would allow a successful plaintiff filing claims under both title
VII and ENDA for the same alleged wrongful conduct could obtain a dual
recovery? If not, why does it contain a provision specifically
providing that it does not invalidate or limit the rights, remedies, or
procedures available under any other law or regulation? Why would such
a result be warranted? What changes could be made to the bill to
eliminate the possibility of such a dual recovery?
Answer 1. Current law permits plaintiffs to plead alternative
claims that challenge the same conduct under different legal theories--
but does not permit double recovery by a plaintiff who succeeds on more
than one claim that challenges the same conduct. ENDA is fully
consistent with such law.
A wide range of unlawful conduct violates more than one statute.
Plaintiffs' ability under current law to plead alternative theories is
particularly helpful when different causes of action provide for
different statutes of limitations, different procedural mechanisms,
etc. For example, an employer's intentional race discrimination may
violate 42 U.S.C. 1981 (which prohibits race discrimination in the
making and enforcement of contracts, including employment contracts) as
well as title VII's prohibition on discrimination in the terms and
conditions of employment. Similarly, an employer that engages in pay
discrimination on the basis of sex may violate both title VII and the
Equal Pay Act. Outside of the antidiscrimination context, to identify
just one of countless examples, a merchant who engages in false
advertising may commit common law fraud as well as violate Federal and/
or State consumer protection statutes.
So, too, if ENDA is enacted, an employer that takes an adverse
employment action against an employee or applicant because that person
departs from stereotypes associated with being male or female might be
found to violate both title VII's ban on employment discrimination
based on sex and ENDA's ban on employment discrimination based on
gender identity. ENDA simply preserves a plaintiff 's ability to plead
such alternative theories by providing that it does not invalidate or
limit the rights, remedies, or procedures available under any other law
or regulation.
Longstanding remedies law, moreover, makes clear that a plaintiff
who successfully establishes that a defendant's conduct satisfies the
elements of more than one legal claim is not entitled to double
recovery. As the Supreme Court has repeatedly emphasized, ``It goes
without saying that the courts can and should preclude double recovery
by an individual.'' E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 297
(2002) (quoting Gen. Tel. Co. of the Northwest v. E.E.O.C., 446 U.S.
318, 333 (1980)). Courts uniformly apply this basic principle of law.
See, e.g., Starrett v. Wadley, 876 F.2d 808, 822 n.19 (10th Cir. 1989)
(``As to plaintiff 's damages, we note that plaintiff should not be
allowed `double recovery' under section 1983 and title VII. For
example, if plaintiff is awarded damages under section 1983 for lost
back pay, she cannot recover back pay damages under title VII.'');
Anderson v. Group Hospitalization, Inc., 820 F.2d 465, 473 (D.C. Cir.
1987) (compensatory damages awarded under both 42 U.S.C. 1981 and
title VII for same time period would constitute impermissible double
recovery); Williams v. Trans World Airlines, 660 F.2d 1267, 1274 (8th
Cir. 1981) (``The district court found that the plaintiff succeeded
under both title VII and [42 U.S.C.] section 1981, and apparently
doubled the damages award. This is clearly erroneous, as damages are
only recoverable once for a transaction involving two violations of
law.'').
No language change is thus needed to prevent the possibility of
double recovery by a plaintiff who prevails on more than one claim that
challenges the same conduct, because clear and longstanding precedent
makes clear that he or she can recover only once.
Question 2. It has been stated that individuals protected under
ENDA would actually have access to greater remedies than those
protected under title VII by way of their race, color, religion, sex or
national origin, or under the ADA by way of disability. Namely, ENDA
claimants could recover attorney and other fees from administrative
proceedings, including an EEOC determination. EEOC decisions are not
considered ``final orders'' and so are not subject to appeal.
Therefore, an employer would not be able to contest any such award and,
in fact, the EEOC is not even required to provide documented reasons
for its decisions. Do you believe that plaintiffs alleging
discrimination based on sexual orientation and sexual identity should
be entitled to greater remedies than other title VII and ADA
plaintiffs? Why would it be appropriate to deprive employers of their
due process rights to contest attorney's fees awards solely for
plaintiff 's alleging discrimination based on sexual orientation and
sexual identity? What changes could be made to the bill to ensure that
ENDA claimants are treated the same as all other discrimination
claimants in terms of potential recovery?
Answer 2. I agree that the remedies available under ENDA should
track those available under the other Federal antidiscrimination
statutes. I believe, however, that ENDA's language does in fact
parallel that of other Federal law and in no way deprives employers of
their due process rights.
Section 12 of ENDA provides that:
``[I]n an action or administrative proceeding for a violation
of this Act, an entity described in section 10(a) (other than
paragraph (4) of such section), in the discretion of the
entity, may allow the prevailing party, other than the
Commission or the United States, a reasonable attorney's fee
(including expert witness fees) as part of the costs.''
(emphasis added).
This language parallels the attorney's fees provision of the
Americans with Disabilities Act of 1990, which provides:
``In any action or administrative proceeding commenced
pursuant to this chapter, the court or agency, in its
discretion, may allow the prevailing party, other than the
United States, a reasonable attorney's fee, including
litigation expenses, and costs, and the United States shall be
liable for foregoing the same as a private individual.'' 42
U.S.C. 12205 (emphasis added).
I know of no instance in the ADA's nearly 20-year history in which
this language has been misinterpreted to assess attorney's fees against
an employer based on the EEOC's investigative determination that there
is reasonable cause to believe that an employer has engaged in unlawful
discrimination. No doubt this is because the Federal antidiscrimination
statutes do not provide the EEOC with the authority to adjudicate
discrimination charges with respect to private, State, or local
government employers and thus there is no ``prevailing party'' at this
administrative stage as required to trigger a fee award. Instead,
Federal law confers the Commission only with the authority to
investigate such charges and, if it finds reasonable cause, to seek to
conciliate the dispute. If conciliation is unsuccessful, the Commission
may choose to bring a civil action against the employer itself (or, in
the case of a State or local government employer, to refer the charge
to the Department of Justice for possible litigation). Alternatively,
the Commission may decline to litigate; in that case, the charging
party retains the right to pursue a civil action himself or herself.
See 42 U.S.C. 2000e-5. But not until a court decides that civil action
is there a ``prevailing party'' that triggers the possibility of
attorney's fee awards.
Instead, I believe that the reference to ``administrative
proceedings'' addresses those limited circumstances in which Federal
law creates special processes for the administrative adjudication of
discrimination charges--including the assessment of remedies--by
entities ``described in section 10(a) (other than paragraph (4) of such
section).'' For example, title VII creates a separate process for the
resolution of discrimination charges by Federal executive branch
employees and provides the EEOC with the authority to enforce such
protections through appropriate remedies. 42 U.S.C. 2000e-16(a) and
(b). Similarly, the Congressional Accountability Act protects Federal
legislative branch employees from job discrimination, 2 U.S.C. 1311,
and permits the award of attorney's fees after administrative
proceedings before a hearing officer or the Board of Directors of the
Office of Compliance. See 2 U.S.C. 1361.
Question 3. In addition to prohibiting discrimination in employment
on the basis of gender identity, ENDA places affirmative obligations on
employers with regard to shared shower or dressing facilities in which
being seen unclothed is unavoidable for individuals who have either
``undergone'' or who are ``undergoing'' transition to a different
gender. The bill text leaves employers with a great deal of questions
about how this requirement would work. Specifically, employers wonder
what would constitute ``notification'' that private dressing and shower
facilities will be required? Would the requirement also extend to
bathroom facilities? The bill states that no new facilities would be
required, but would employers be required to renovate existing
facilities?
Answer 3. If an employee has undergone a gender transition before
starting work with a particular employer, the duty of nondiscrimination
under these sections applies based on the employee's gender as
established at the time of employment (e.g., through the employee's
name, clothing, mannerisms, or employment references). In this case,
the employer need not inquire, and the employee need not disclose,
information regarding the employee's transition. The employer's
obligation is simply not to discriminate in the event that the past
transition comes to the employer's attention.
If, on the other hand, an employee undergoes gender transition
after starting work with a particular employer, I understand the terms
``notification'' in ENDA section 8(a)(3) and ``notified'' in section
8(a)(5) to mean that that employee must take some affirmative step to
communicate the matter to the employer. See, e.g., Detroit Coil Co. v.
Int'l Ass'n of Machinists & Aerospace Workers, 594 F.2d 575, 580 (6th
Cir. 1979) (``The word `notified', in its ordinary usage, means the
completed act of bringing information to the attention of another'').
Courts have consistently interpreted the term ``notification'' under
Federal employment law to include any communication that is sufficient
to express the matter to the employer in an understandable way, without
requiring any special form or any ``magic words.'' See, e.g., Smith v.
Midland Brake, Inc., 180 F.3d 1154, 1172 (10th Cir. 1999) (en banc)
(concluding that the ADA does not require an employee to use any
``magic words'' when notifying an employer of his or her disability and
request for reasonable accommodation); Sarnowski v. Air Brooke
Limousine, Inc., 510 F.3d 398, 402 (3d Cir. 2007) (concluding that the
FMLA does not require an employee to use any ``magic words'' when
notifying an employer of his or her request to take leave for a serious
health condition).
Section 8(a)(3) of ENDA provides a defense to employers who meet
certain conditions with respect ``to the denial of access to shared
shower or dressing facilities in which being seen unclothed is
unavoidable.'' It thus applies only to the denial of access to those
shared workplace facilities in which, unlike nearly all restrooms,
being seen unclothed is unavoidable. Longstanding OSHA regulations
already require employers to ensure employee privacy in restrooms
through the provision of stalls or single-user restrooms. Indeed, these
regulations, which apply to all permanent places of employment, require
that ``[e]ach water closet shall occupy a separate compartment with a
door and walls or partitions between fixtures sufficiently high to
assure privacy.'' 29 CFR 1910.141(c).
Section 8(a)(4) provides that employers are not required to
construct new physical facilities in order to comply with the act. It
does not speak to any duty to renovate or modify existing facilities.
[Whereupon, at 12:26 p.m., the hearing was adjourned.]