Yesterday, the Advocate reported that House Democrats, not content with the already watered-down provisions of ENDA, were gutting several provisions of the Employment Non-Discrimination Act, apparently in response to several "concerns" raised by the testimony of Chicago coporate defense counsel Camille Olson in her September and November testimony before the House and Senate, respectively. Specificially, Ms. Olson, in the interest of employers fearing liability under the Employment Non-Discrimination Act, recommended amending ENDA to explicitly prohibit Title VII recovery for LGBT plaintiffs only, a stronger (and unnecessary) amendment prohibiting disparate impact claims, and an amendment eliminating certain attorney's fees. More, including contact information, below the fold.
In September of 2009, Ms. Olson testified (PDF) before the House Committee on Labor and Education, raising several objections to HR 3017, the Employment Non-Discrimination Act of 2009. Yesterday, the Advocate reported that the the House committee appeared to be in the process of amending ENDA to reflect Ms. Olson's "concerns."
A House committee vote on the Employment Non-Discrimination Act, originally scheduled for Wednesday, November 18, was postponed so that lawyers could adjust the legal language regarding issues of disparate impact, double recovery, and attorney’s fees.
"Our understanding is that the committee lawyers wanted a few more days to look at several of the outstanding issues," said Allison Herwitt, legislative director for the Human Rights Campaign.
ENDA would prohibit employers from discriminating against workers on the basis of their sexual orientation or gender identity. The legal fine-tuning stands to push back the date of the committee vote by about two to three weeks. "Hopefully, we’ll be able to see a markup after Thanksgiving and before the end of the year," Herwitt said.
Apparently, the House committee has identified three areas that correspond to the objections raised by Ms. Olson: disparate impact, so-called "double recovery," and attorney's fees. In her house testimony, and presumably her senate testimony thirteen days ago, Ms. Olson made the following "suggestions" for amendments:
- Explicitly Prohibit Disparate Impact Claims
- Explicitly Prohibit LGBTs from bringing sex stereotyping claims under Title VII
- Eliminate the possibility of recovering attorney's fees in administrative hearings
Let's examine Ms. Olson's "objections" to ENDA.
- Disparate impact
Section 4(g) of the Employment Non-Discrimination Act of 2009 provides as follows:
(g) Disparate Impact- Only disparate treatment claims may be brought under this Act.
Disparate impact claims are actionable under Title VII, which prohibits, inter alia, employment discrimination on the basis of race and sex. An employer who adopts a facially neutral policy, that is, an employment policy requiring, for example, a test for prospective applicants, or for promotion, may be liable under Title VII even if the policy does not explicitly discriminate on the basis of race, sex or age.
Ms. Olson suggested that the committee adopt an amendment explicitly stating that disparate impact claims are not permitted under ENDA. Apart from being superfluous in light of HR 3017’s language, it is troubling that ENDA does not permit disparate impact claims, mirroring Title VII. Representative Robert Andrews suggested that "it would be hard to think of a situation where a disparate impact claim could be brought under ENDA." Link.
Although it is difficult to imagine, it is not impossible to imagine. Federal law, for example, does not prohibit employment discrimination on the basis of marital status. A promotional policy favoring an applicant who was married would have a disparate impact on LGBTs, even though the policy would not be actionable under disparate treatment because it was not explicitly based on an applicant’s sexual orientation or gender identity. Many states prohibit marital status discrimination, but many states do not. An employer who wished to circumvent ENDA could adopt a seemingly neutral policy with the effect of excluding LGBTS.
- "Double Recovery" Under Title VII
As obnoxious as the amendment barring disparate impact claims may be, far more odious is the proposed amendment to eliminate "sex stereotyping" cases. As Ms. Olson explained in her house testimony:
ENDA is the only federal legislation, that, if enacted, would expressly prohibit
discrimination or retaliation on the basis of sexual orientation37 and gender identity.38 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, 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. 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 sexstereotyping 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"? These concepts are overlapping, thus, certain
factual situations that some courts have found actionable under Title VII would most
assuredly be actionable under ENDA.
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 H.R. 3017 for the same alleged wrongful conduct.
Contrary to the assertions of defense counsel Camille Olson, there is no potential for "dual recovery" if litigants bring successful sex stereotyping cases under Title VII. A successful plaintiff is already prohibited from dual recovery; an employee fired because of his race and age cannot recover twice, even though there were two illegal reasons for his termination. Instead, Olson’s proposed "clarification" would gut Title VII protections available for LGBTs who are discriminated against for appearing too effeminate or masculine, or for heterosexuals who do not conform to gender stereotypes.
- Elimination of Attorney’s Fees
The final objection of Ms. Olson is also the subject of review by the committee’s counsel. Specifically, Ms. Olson objected to the possibility of a prevailing party collecting attorney’s fees in administrative hearings:
H.R. 3017, Section 10(b)(1) specifically provides that the procedures and
remedies applicable are those set forth in Title VII (42 U.S.C. § 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
Specifically, H.R. 3017, 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, such as the ADA, adopts Title VII’s remedies. ENDA, in contrast, as discussed, would add new remedies.
Even assuming that this is a fair reading of the Act, there are several reasons to support it. First, ENDA does not parallel Title VII employment claims: disparate impact claims are not actionable under ENDA. Second, the prospect of attorney’s fees provide an incentive for plaintiffs attorneys to take the case. Given the restrictions applicable to ENDA, it is important that attorneys have an additional incentive to bring discrimination cases, particularly if, as Ms. Olson proposes, ENDA litigants are prohibited from bringing Title VII claims. Third, even i ENDA did perfectly track Title VII, fewer than half of the States have employment discrimination statutes protecting LGBT employees, and without this additional avenue of recovery, LGBT plaintiffs need something else to attract prospective attorneys if they cannot afford to pay them hourly. Finally, the prospect of paying attorney’s fees after a finding of substantial discrimination by the EEOC will deter employers from discriminating on the basis of sexual orientation and gender identity, and will encourage early settlement and dispute resolution before cases are even brought to the EEOC.
The objections raised by Ms. Olson at the behest of corporate America are borderline frivolous, but House Democrats, never missing an opportunity to throw LGBTs under the bus, appear to be contemplating the incorporation of her proposed amendments. Take Action! Contact the House Labor and Employment Committee and tell them to drop the Olson Amendments. Here is a list of Committee members; follow the link to their contact information and let them know LGBT people can't be thrown under the bus this time around:
Democrats
George Miller, Chairman (CA-07)
Dale E. Kildee (MI-05)
Donald M. Payne (NJ-10)
Robert E. Andrews (NJ-01)
Robert C. Scott (VA-03)
Lynn C. Woolsey (CA-06)
Rubén Hinojosa (TX-15)
Carolyn McCarthy (NY-04)
John F. Tierney (MA-06)
Dennis J. Kucinich (OH-10)
David Wu (OR-01)
Rush D. Holt (NJ-12)
Susan A. Davis (CA-53)
Raúl M. Grijalva (AZ-07)
Timothy H. Bishop (NY-01)
Joe Sestak (PA-07)
Dave Loebsack (IA-02)
Mazie Hirono (HI-02)
Jason Altmire (PA-04)
Phil Hare (IL-17)
Yvette Clarke (NY-11)
Joe Courtney (CT-02)
Carol Shea-Porter (NH-01)
Marcia Fudge (OH-11)
Jared Polis (CO-2)
Paul Tonko (NY-21)
Pedro Pierluisi (PR)
Gregorio Kilili Camacho Sablan (Northern Mariana Islands)
Dina Titus (NV-3)
Judy Chu (CA-32)
Republicans
John Kline, Ranking Member (MN-02)
Thomas E. Petri (WI-06)
Howard "Buck" McKeon (CA-25)
Peter Hoekstra (MI-02)
Michael N. Castle (DE-At Large)
Mark E. Souder (IN-03)
Vernon J. Ehlers (MI-03)
Judy Biggert (IL-13)
Todd Russell Platts (PA-19)
Joe Wilson (SC-02)
Cathy McMorris Rodgers (WA-05)
Tom Price (GA-06)
Rob Bishop (UT-01)
Brett Guthrie (KY-2)
Bill Cassidy (LA-6)
Tom McClintock (CA-4)
Duncan D. Hunter (CA-52)
David P. Roe (TN-1)
Glenn "GT" Thompson (PA-05)
UPDATE: Someone asked for a suggested script:
Hi I'm X:
I'm calling about HR 3017, or ENDA. I recently read a report about some amendments. I have some objections. First, disparate impact claims are already not permitted, even though they should be. A more explicit amendment to section 4(g) is not required.
Second, there's talk of an amendment to prohibit dual recovery under Title VII. This would force women and men discriminated against for sex stereotyping to take their claims under ENDA, even if they are not LGBT. Some people might not be able to recover for being discriminated against at all if their employer is covered under Title VII, but not ENDA.
Third, the attorney's fees provision is necessary to get attorneys to take the case, as many plaintiffs who are discriminated against cannot pay on an hourly basis. Any fees awarded at an administrative hearing will be de minimis or minimal at best, and small businesses are not covered by ENDA. The fees also encourage early settlement and dispute resolution, so that the employee doesn't need to bring a claim or hire a lawyer in the first place. Congress needs to leave section 12 of ENDA alone