Nan Hunter

Legal issues in ENDA 2009 version, Round 1

Filed By Nan Hunter | September 26, 2009 12:00 PM | comments

Filed in: Politics
Tags: Congress, Employment Non-Discrimination Act, ENDA, law, National Religious Broadcasters, Stuart Ishimaru

Wednesday's hearing before the House Education and Labor Committee probably could not have gone better for supporters of ENDA. You can watch it and access copies of all the written testimony at the Committee's website. All Witnesses-websized-194h.jpgSpecial cheers to witnesses Vandy Beth Glenn, Bill Eskridge and Brad Sears. (See other Bilerico posts for a detailed summary and Jillian Weiss's excellent call to take action.

There were no fireworks at the hearing, doubtless due in large part to the fact that only a handful of Republican members attended, at least one of whom is an ENDA co-sponsor. The most striking aspect of the tone in the hearing room was how technical most of the legal discussion was - no arguments over covering this group of people, no moral claims, no indication that including transgender people was anything other than a no-brainer. BUT - this was only the hearing.

The two Republican witnesses came across like a mispaired duet: one speaking for employers, one for religious conservatives, with no overlap in their arguments.

Virtually all of the discussion on possible problems with the bill centered on the testimony given by Camille Olson,a management side attorney with Seyfarth Shaw and a member of the policy subcommittee on equal employment opportunity of the Chamber of Commerce. In other words, she was representing employers.

Her testimony was neither in support of or in opposition to ENDA, but was focused on raising potential objections to specific provisions in the bill. The main point of her testimony was that there is "ambiguity and uncertainty" in the bill at multiple points. Her issues included: whether ENDA will duplicate Title VII's cause of action for sex stereotyping, what changes employers will have to make regarding restroom use policies in order to avoid discriminating based on gender identity, whether ENDA will generate more attorneys fees awards for plaintiffs than Title VII does, and whether the explicit limitation of ENDA to disparate treatment claims really means that disparate impact claims are excluded.

Acting EEOC Chair Stuart Ishimaru, testifying on behalf of the Obama administration, answered the last point by saying that, yes, there really is an exclusion, and I would direct the EEOC to not pursue any claims brought to it which fall into the category of disparate impact theories. But the other points generated a fair amount of discussion, and may show up in later phases of the legislative consideration of ENDA.

The second witness sponsored by the R members was Craig Parshall, general counsel for the National Religious Broadcasters. He and Olson pretty much embodied the two wings of the Republican Party - the religious/social conservative wing and the business wing. By contrast to Olson, Parshall's testimony did not get much take-up or generate much discussion. This may be a result of so few Rs being there to pick up those themes.

The tone of the committee and floor debates could well be very different from the tone of the hearing. But it also struck me as perhaps auguring a new general attitude toward ENDA, of - more or less - morality, schmorality, let's keep our eyes on what's really important: insuring that this law doesn't cost employers too much.

(Cross-posted at hunter of justice)

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angela Brightfeather | September 27, 2009 1:54 AM

Having been at the previous hearing on ENDA, I agree that this one was a lot more oriented towards the impact that ENDA will have with employers.
For that reason I was very sorry not to hear any testimony from some of the major unions like the
AFL/CIO and/or the Service Workers National. With some more open support from the unions it might mute the employer questions a bit and the President has a lot of dues to pay with unions after the election.

I did notice also that therer is this terrible concern about toilet and locker facilities. My feelings are that such issues shoud be worked out between the emplyer and the employee, rather than trying to solve the issue with legislation. In other words, leave it up to the people who need to work around it and come to mutally acceptable agreements, instead of having politicians try to cover all the variables. A good faith effort ont he part of the employer and employee usually end with a compatable understanding. I feel that the intention of bringing up these issues attached to the legislation, is a deliberate diversion on the part of religious right anyway.

I thought our side did remarkably well too, Nan.