Marla R. Stevens

ENDA Intro -- Big Whoop

Filed By Marla R. Stevens | April 25, 2007 9:22 AM | comments

Filed in: The Movement, The Movement, Transgender & Intersex
Tags: civil rights, Civil Rights Act of 1964, ENDA, HRC

Drum roll, please. Drop the balloons. Throw the confetti. Remove the embargo from the press releases. ENDA has been re-introduced. Let the 'Grateful Fools Showering HRC with Credit Card Moolah' season begin!

Because, boys & grrls, that's about all the good this will do anyone.

Oh, I hear you saying, "I know you think it's worse than crap but at least it's a step forward."

Oh, really?

Does your workplace have enough employees to qualify under ENDA? Most don't. Way most.

Is it completely devoid of church involvement? -- and I'm not talking the narrow carve-out for sacred employment that conforms the law to the requirements of the First Amendment that is the standard for the 1964 Civil Rights Act. I mean completely devoid. Churches own substantial business and property in Indiana -- including those largest of employers in Indianapolis, Methodist and St. Vincent's hospitals. (Gay people have reported allied health as our highest per capita employment for decades. The transgendered report allied health in their top five.) They own rental properties, social service agencies, schools, restaurants -- and other employers service them as a substantial part of their businesses. Good luck not getting stuck in that loophole.

Think you're safe because it's federal employment you're after? Think again. You are not protected from the discrimination in civil service applications that you face as a gay or transgendered person who has been denied equal opportunity to earn extra points for military service (and certain other forms of federal service we've been historically discriminated against in) because there's a provision in ENDA forbidding consideration of disparate impact. Those covered by the 1964 Civil Rights Act get to use disparate impact, however. Yes, you will finally be statutorily guaranteed the right to get in line -- behind just about everyone else who scored as well on the tests and resume ratings as you did.

And that's not the biggest effect of not having access to disparate impact consideration. Even if you manage to jump through all the many hoops you have to jump through to qualify to even begin to claim discrimination under ENDA that people covered under the 1964 Civil Rights Act don't have to jump through, you still have to win your case.

What that means in practical terms is that you have to work for someone really, really stupid -- so stupid as to declare openly in writing or in front of credible witnesses who will testify for you that you were otherwise the one and only best qualified person for that work but that you were denied employment or advancement or other employment-related opportunity because of your sexual orientation and/or gender identity -- sexual orientation and/or gender identity that also fit the unnecessarily very narrow definition of sexual orientation and gender identity that ENDA covers, by the way. (And don't even get me started on the issue of perception.)

Most cases brought under the 1964 Civil Rights Act are won not just on their individual evidence but are accomplished at least in part due to disparate impact in no small part because these cases -- even the ones with good evidence -- are insanely difficult to prove otherwise.

In other words, with these and the other restrictions built into ENDA, it will be the relatively rare person who has been discriminated against because of sexual orientation and/or gender identity who will win their case. Chances are, given that antigay oppression is institutionalized and rarely recognized by even the oppressors as something they do, more of those wins will be by hets claiming discrimination by gays -- particularly in the early years of the law.

Most won't know any of this, so the momentum toward a real civil rights act that will cover us as well as the 1964 Civil Rights Act does those it includes in employment, not to mention one that will cover the whole of the needed scope of employment, housing, public accommodation, and credit, will be lost.

Is that a step forward or just another bump in the road?

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Thanks for this, Marla. It's good to stay grounded when something with this much fanfare happens.

You're right about the religious exemption needing to be reduced. Like, maybe for church leadership they can have whatever qualifications they want, but a nurse in a Catholic hospital? That makes no sense. Then again, it doesn't make sense to me that so many members of the Catholic clergy are themselves gay yet continue to support discrimination against gays, but I guess that just comes with the territory.

I'm completely with you on the enforcement aspect, as I said in a comment on Marti's ENDA post. Proving discrimination when there often isn't anything that expressly says that's the reason someone was fired, combined with presumption legally being on the side of the employer, but also with their lawyers, money, power, and the fact that a lot of people feel the need to take their side either because they think that discrimination against queers is good or they can't possibly accept the fact that discrimination exists or they think that gays are rich and powerful would makes cases like these nearly impossible to win.

I was curious after reading your diatribe so I went to the US Congress website and read the original H.R. 2692 (ENDA - the 2007 enhancements are not posted yet). Yes religious institutions are exempt. Yes, entities w/ less than 15 employees are exempt. Does this make the bill bad legislation? No. Leftover after those two exemptions are billions of companies who won't be able to fire GLBT Americans and billions of employees who will enjoy that protection. Surely, its few but obviously not tolerable exemptions pale by comparison w/ the overwhelmingly massive number of US employers and employees it will impact in a positive way, not to mention the protections it guarantees to millions of GLB & T Americans. Hurrah to all groups pushing for its passage and to the Democratic leadership in both Houses of Congress for their courage in bringing it back to the table from 2001! Why not celebrate this huge step forward instead of arguing we shouldn't accept any steps forward at all until it has every single thing in it you want? It never will. No bill is perfect, they're all compromises. By your evaluation system, legislative steps to remedy societal ills in the past would have kept blacks as slaves, not allowed women to vote, have continued to ban inter-racial marriages, and kept schools segregated. Let's use our powers for good, shall we? Let's recognize the huge step forward this is and work in the future to make it even better, rather than decrying those who are working so hard for its passage and who realistically saw compromise was needed in order to pass this perhaps imperfect, but nevertheless landmark and massively impactful legislation.

Stuart Rosenberg | April 25, 2007 10:23 PM

I wanted to respond on behalf of HRC to the post about ENDA. We certainly respect Marla's right to question the merits of passing the Employment Non-Discrimination Act (ENDA) and are prepared to debate and defend the need for this federal legislation. To summarily dismiss the ways that GLBT people in Indiana and the other 32 states that offer no protections to gay, bisexual and lesbian Americans and the 41 states that offer no protection for gender identity, diminishes the legitimate ways ENDA will actually help people in our community.

In many states, the prospects for providing employment protections are quite dim, which is why a federal law is needed. HRC's staff were on the ground with you in Indiana to help successfully beat back an anti-gay marriage amendment in the Indiana Legislature earlier this year so we have a sense of what you are up against. Passing ENDA would indeed be a step in the right direction for the GLBT community in Indiana and in the U.S. -- and we need your help to make that happen.

Your members of Congress are critical to our success. We need the GLBT community contacting and reaching out to the new members you helped
elect last November. The opposition in Congress from the radical right will be intense. We've already seen their campaign to defeat Hate Crimes and ENDA start. Nothing would empower our pponents more then defeating our legislative initiatives in this new Congress. We need every vote we can muster -- and your state's delegation is critical.

A few additional points that address the specific concerns about the legislation:

- ENDA covers employers of the same size as Title VII, the law covering discrimination on the basis of race, sex, national origin, and religion.
Title VII applies to employers with 15 or more employees, a number that will benefit over 83% of workers in Indiana.

- Plaintiffs under any civil rights statute must win their cases. More importantly, the existence of a civil rights statute actually prevents discrimination from taking place. It does not eradicate all discrimination, but we can't deny that the Civil Rights Act of 1964 has reduced workplace discrimination.

- Regarding the inability for GLBT civil service job applicants to earn extra points for military service, this problem results from the military's discriminatory don't ask, don't tell policy, not ENDA's drafting. HRC supports repeal of DADT, but the fact that ENDA does not address the inequality caused by that law does not lessen the bill's

- Disparate impact cases use statistics to show that an employer practice, which is nondiscriminatory on its face, has a greater impact on one group than on another. Disparate impact cases are, indeed, not available under ENDA, largely because they would require having accurate statistics regarding the number of gay, lesbian, bisexual and transgender people in an employer's workforce versus the available labor pool. Access to disparate impact under ENDA would lead to employers collecting information about employees' sexual orientation and gender identity - in essence, forcibly outing all gay, lesbian, bisexual and transgender employees in order to insulate themselves from liability.

And, unlike in the case of race or sex under Title VII, statistical data on GLBT people in the available community workforce would be very difficult to ascertain.

Finally, ENDA does specifically address an area that could have a disproportionate impact on GLBT employees - conditioning employment on marriage or the ability to marry. When employers condition employment on an employee's status as married, or his or her ability to get married, they per se exclude individuals who are denied the right to marry in their states because of their sexual orientation or gender identity. ENDA does not permit employers to use marriage as a proxy to
discriminate based on sexual orientation.

Stuart Rosenberg
HRC Regional Field Director

Thanks for responding, Stu. While Marla lays out some valid concerns, I'm glad to see that you're able to address them. And your explanations make sense to me...

As a gay man that has been fired for sexual orientation (and got lucky that it happened in Bloomington which had some limited protections) I've fought for years to get employment non-discrimination policies that cover sexual orientation and gender identity. I am very proud of my work to help get the Indianapolis HRO passed, and I'm also very proud of the assistance I got from HRC in doing it! Stu's predecessor in DC and the local chapter did everything they could to help protect Indianapolis workers.

And I think that's what HRC is doing now too. They're joining with as many other organizations as they possibly can to help to pass employment protections. Are there loopholes? Yes. There were in the Indy HRO too. But when the vast majority will be covered, you take the deal and make the most.

I support ENDA.

Marla R. Stevens | April 26, 2007 6:52 AM

1. Notice how fast HRC pops out of the woodwork when someone mentions the crass misuse of the sentiments of our people that is too often foundational in their revenue stream.

2. I've never questioned the need for federal legislation to address our civil rights needs. I've only questioned why we as a people should be forced to accept less than the protections everyone else gets -- and the sloppy strategic thinking that led to that.

3. Good civil rights legislation prevents discrimination. Legislation full of loopholes and carveouts that is virtually unenforceable sets up a virtual reality instead. It sends a message that we believe ourselves so unworthy of equality that we'll even settle for vastly diminished remedies to violations of it -- either that or that we just don't have the juice to fight for the real thing.

As King said, it is less the existence of the legislation that is preventative but the process, the discussion, that leads to it. He said that civil rights legislation is, in the long run, for the recalcitrant few who will be immune to that process and that that will never be satisfactory as even a make-whole remedy, which this legislation falls short of, cannot heal the damage to the soul that is the worst destruction of discrimination.

I posit that not merely accepting but actively seeking second-class civil rights remedies reinforces that collective soul damage we all suffer at some level -- that our willingness to accept it and actively seek second-class remedies flows from it as well, in a vicious circle that must be broken for us to truly progress as a people.

4. The data on number of workers covered ignores the number of employers not covered -- and which statistic represents where the greater part of the problem lies (in employment only -- remember, this doesn't touch housing, public accommodation, or credit). Yes, that's comparable to Title VII but, if the argument still being fed to the public for not taking the amendatory route is that separate legislation is needed to tailor the legislation to our needs, why ape this part that makes no sense?

5. Of course the civil service points discrimination results from past and current discrimination (military and in other things considered) and will continue until those problems are fully resolved. That's not the point. Disparate impact inclusion provided a remedy -- a remedy that has been removed from the bill. After all, the discrimination is historic and, even if the problems are fully resolved, that historic discrimination effect will remain for the next half century following that resolution unless disparate impact is restored.

6. Regarding the more traditional use of disparate impact, if Mr. Rosenberg does not know that the concerns he laid out were already dealt with by his own organization's representative to one of the ENDA drafting groups over a decade ago, he should. It is very simple: As the class of those discriminated against also includes those perceived to have a sexual orientation (or gender identity) of which the discriminator disapproves, it is not necessary to poll all the employees. Statistical data from reputable broader research can suffice. The other acceptable route that does not depend upon perception is the group of those already known, as, without perception, that is the class of people who suffer the discrimination.

Please notice that Mr. Rosenberg dismisses my solidly rooted in reality cautions about ENDA's enforcability sans disparate impact inclusion without challenging that reality.

Disparate impact isn't some little loophole that you can "take the deal and make the most" of. It is the hingepin of the whole kit-n-kaboodle.

If Mr. Rosenberg doesn't know that it is so effective and necessary to enforcement that the forces of darkness want to take it away from everyone who now has it, leaving them, too, in a situation of virtual civil rights coverage that exists almost in name only, and that that is why we aren't being allowed in the club of people with real civil rights protections, his bosses at HRC do -- as do the other groups in the LCCR who have been pulling their strings since about 1990.

The bottom line that is directly resulting from that is why we are all supposed to worship once again at the altar of second-class existence under the law. What is wrong with us that we will not exercise the discipline, mature patience, and hardball fortitude necessary to get what we both need and deserve? Why are we treating as real friends those who are still only behaving as virtual ones?

Marla R. Stevens | April 26, 2007 7:02 AM

The marital status inclusion would be a good one if it was in a bill that would end up being enforceable. My suggestion is to make it a stand-alone with disparate impact. Marital status is a known and could not conceivably unduly invade anyone's privacy, after all.

Marla R. Stevens | April 26, 2007 7:05 AM

And, while you're at it, put it in a bill that includes housing, public accommodation, insurance, and credit as well as employment -- all areas where marital status discrimination are known to exist.