in violation of California law, allowed a hostile work environment for LGBT people. (Freedom to Work)
Some states offer some such protections, but unfortunately in 29 states, it’s still perfectly legal to fire someone solely because they’re lesbian, gay, or bisexual; in 34 states, it is legal to fire someone solely for gender expression. It isn't anticipated Texas, Tennessee or Mississippi will be passing these bills soon; hence the need for federal intervention.
LGBT advocacy group GetEqual scrupulously documented the path the legislation has taken since 1974, and the timeline includes no fewer 58 data points from just the 111th Congress alone. These communiques to the LGBT community come directly from credible figures like House Minority Leader Nancy Pelosi; Sen. Tom Harkin; Reps. Barney Frank, Tammy Baldwin and Jared Polis; Human Rights Campaign President Joe Solomnese and others.
Rep. Barney Frank announces plans to introduce an inclusive ENDA and says he believes the “prospects for passing and inclusive ENDA has improved significantly” because “the transgendered [sic] community is lobbying hard.” —June 17, 2009
Rep. Tammy Baldwin says “as someone who has actually counted the votes, I believe that there are” votes in place and added “we want the votes as soon as possible."
—March 18, 2010
Rep. Jared Polis says “we have the votes to pass ENDA in the house and we hope to bring it before the committee I serve on within the month—by the end of April” and added that “once it passes the committee, it shouldn’t take more than a couple of weeks-a week or two-to schedule it to the floor. —March 30, 2010
[Then] Speaker Nancy Pelosi says “The committee of jurisdiction, the Education & Labor Committee is working very hard to have the strongest possible bill and vote when we come to the floor. I believe that it will be soon, and as soon as they are ready, Leader Hoyer and I agreed that it will come to the floor. So, I think it will be pretty soon.”
—April 15, 2010
So what happened? No one who knows is talking.
In February 2011, Kerry Eleveld wrote at Equality Matters about the mystery of what happened in the 111th Congress:
Second, although I have asked a good number of questions about ENDA and its prospects for a vote, I still can't tell you why it never happened. Meanwhile, I can recall with decent clarity nearly every twist and turn of the battle to pass "don't ask, don't tell" (DADT) repeal. This is not due to a bias on my part, but is rather indicative of the fact that no one seemed willing to talk with any specificity about what was or wasn't happening with ENDA.Ms. Eleveld was the White House correspondent for The Advocate for most of President Obama's first two years, and as such, was well positioned to know what was really going on.
Well, that was then, this is now. Aside from pointing fingers and assessing blame, it is important to hope for a clearer answer on what went wrong. Assurances the votes were there and the passage was imminent give advocates little clue as to what actually derailed it and what could be better addressed in the next battle.
And there will be another battle, despite the rise of House Speaker John Boehner means, for all but the most starry-eyed of optimists, that federal legislative remedies are off the table for now.
Still, it's defeatist to think the fate of an entire movement rests in the hands of one man. There is more than one way to skin a cat, as they say (apologies to PETA).
This is Part 1 of a two-part series on the movement that Speaker Boehner can't kill.
Taking it to the courts
The issue of employment discrimination is a difficult one to litigate in general. There is so much gray area. Marginalized minorities may find themselves having to meet impossibly high standard precisely because they are disliked. While another employee enjoys the kindness of say, coming in late to drop a child off at school, another less favored employee may find him or herself written up for same minor tardiness violation, regardless if it can be shown to have effected work performance.
Vandy Beth Glenn
in support of ENDA, Sept. 2009.
The question here is whether discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause. For the reasons discussed below, we hold that it does.
An individual cannot be punished because of his or her perceived gender non-conformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual. The nature of the discrimination is the same; it may differ in degree but not in kind, and discrimination on this basis is a form of sex-based discrimination that is subject to heightened scrutiny under the Equal Protection Clause. Ever since the Supreme Court began to apply heightened scrutiny to sex-based classifications, its consistent purpose has been to eliminate discrimination on the basis of gender stereotypes.An interesting and fairly obvious legal theory is that if one cannot suffer discrimination for being a man or a woman, one cannot suffer discrimination for failing to meet someone's subjective standards of what constitutes either.
Shari Hutchinson was hired in 2003 as a Support Officer in the Child Support Enforcement Agency for Cuyahoga County, Ohio. She holds an Executive Masters of Business Administration degree and she had almost twenty years of private sector management experience prior to working for the Agency and was eager to move up the career ladder. However, after her co-workers and managers learned that Shari is lesbian, they spread false rumors about her and repeatedly passed her over for promotions that went to significantly less qualified applicants, including heterosexual candidates who did not even pass the required tests or comply with the Agency’s application procedures. Therefore, Shari filed a federal lawsuit contending that Cuyahoga County’s discrimination violated the Equal Protection Clause of the 14th Amendment of the U.S. Constitution. Neither Ohio law nor federal law bans workplace discrimination based on sexual orientation.False rumors circulated she was the author of lesbian pornography and sympathetic co-workers explained to her they would be distancing themselves from her at the office because they feared being affiliated with Hutchinson would impede their careers.
Hutchinson alleged she was passed over no less than 25 times for promotions, often times by far less qualified candidates. From court documents:
Plaintiff's test was translated to a score of 81.5 of 100, the second highest score of all the candidates after the third posting ... Wendy Fein and Shawntaye McCurdy, two ostensibly straight candidates, were awarded the Budget Management Analyst positions. Shockingly, McCurdy failed the test, receiving a 49 of 100. Even worse, defendants’ 30(b)(6) designee for this position could not explain why McCurdy was permitted to even interview, much less obtain the position, with a failing score.With the assistance of Freedom To Work, Hutchinson sued alleging her guarantee of Equal Protection under the 14th Amendment of the Constitution had been violated.
Attorneys for the county argued "Hutchinson’s claims must fail because sexual orientation is not a protected class, and thus does not merit the constitutional protection, under the Equal Protection Clause." Judge James S. Gwin of the US Northern District Court of Ohio disagreed, denying the County's motion to dismiss, he said (pdf):
...the Court concludes that an employee who alleges sexual orientation discrimination under § 1983 is not per se precluded from establishing an equal protection claim against her employer. Simply because Title VII does not include sexual orientation as a statutorily protected class does not, in this Court’s view, automatically remove all constitutional protection where a plaintiff employee claims equal protection violations based on her membership in that class....
Though sexual orientation may not be a suspect or quasi-suspect class, the Court finds that constitutional disparate treatment claims alleging sexual orientation discrimination by a public employer at least garner the bare minimum of rational basis review.
On the eve of the trial the county and Hutchinson reached a settlement agreement, with Hutchinson receiving $100,000 relief.
While the judge's finding is not binding precedent, it stands as a judgement other cases around the country may cite as persuasive. It is a landmark foot in the door.
When people tell their stories, I'm often surprised and saddened by the amount of abuse that they will endure before they say, "No more."
Hutchinson said in the press conference she got passed over for promotions 25 times before she really believed it was being a lesbian that was holding her back. It's easy to understand that acknowledging, "Oh my God, this is all about discrimination," is the moment you acknowledge that too often the Horatio Alger myth is a myth. That sometimes no amount of hard work and good intentions can overcome simple bigotry and the wall that stands between you and the success of your dreams. Hutchinson explains her awakening:
“On my first day working for the County, I was given the Policies Manual and I was so thrilled to see that discrimination due to sexual orientation would not be tolerated. But after continuously losing promotions when I had scored the highest on the County’s qualifying exam, and watching the jobs go instead to people who had failed the tests or had not even completed the application, I learned there was a glass ceiling for a lesbian woman like me."
A local press report of the judgement:
Sgt. Ronald Crump
Eventually, Sergeant Crump complained to Romero’s boss. When Romero found out about the complaint, he screamed at Crump and threatened him. Romero told Crump, "Don’t forget I hired you even though you’re gay."
After that, Romero increasingly began to treat Crump with hostility. Therefore, in April 2009, Crump formally complained about Romero to the LAPD. The retaliation only got worse from there—Romero first threatened to fire Crump, but instead transferred him to another division where he would have fewer opportunities to advance his career.
Crump sued the LAPD over this retaliatory transfer, and after a lengthy trial, a jury of his peers awarded him a $1.16 million verdict. After the trial concluded, many of the jurors thanked Sergeant Crump for creating accountability and "leading cops." Crump says of his experience:
It was a great dilemma to sue the organization I admire. But my management’s gross decisions adversely affected me and it needed to be challenged – not only for me but all the employees that have been affected similarly. Despite this incident, I still find it a great honor to be LAPD and a contribution to society. I had to trust the justice system and my faith in my actions and failure to waiver in my decisions proved well for equal employment opportunities.
Not a judicial remedy, but an interesting application of already existing federal law is the case of James Friso, a heterosexual military contract employee, which broke on Thursday. The Equal Opportunity Employment Commission intervened in his case where he alleged he was the victim of homophobic harassment and a hostile work environment. The Commission successfully forced a settlement by arguing Friso was the victim of sex discrimination, because he did not meet what his co-worker considered a gender-appropriate standard. The military contractor Dyncorp International settled for $155,000 and promised better training of its employees.
Of course, Crump's victory was made possible only by California's pre-existing non-discrimination state law. And though Hutchinson and Glenn found their relief in federal court, it's important to recognize the legal precedent is more limited than a first glance might suggest. In both these cases, constitutional protections were able to be argued because they were employees of a state, and the judiciary enjoys rather more leeway in directing agents of the state in what their constitutional duty in conduct is. The precedent they set in their wins does not necessarily extend to private sector employment.
Still, victories are victories and such stories make headlines and prompt a public conversation on what is and is not acceptable behavior. Regardless of in-the-weeds concerns about applicable precedent, the broad stroke the casual American hears when these decisions are handed down is, "This was wrong," as viewed through the prism of law and equal protection. And they remind people this is a real problem that has real world consequences for people. A dismaying statistic was released last year that showed that 48 percent of college-educated LGBT people pretended to be straight at work. One can only imagine that statistic is higher for those without a college education. That so many LGBT professionals are closeted speaks to the fear that discrimination is real, omnipresent and unchallengeable.
Within days of the Hutchinson judgement, the Ohio Plain Dealer was moved to print an editorial calling on the state to "broaden Ohio's employment anti-discrimination law to include sexual orientation and gender identity."
Hutchinson's experience ought to persuade the Ohio House to take a full and fair look at a bipartisan measure that would make it illegal in Ohio to discriminate on the basis of sexual orientation or gender identity.The Dealer included this nugget:
Rep. Nickie Antonio, a Lakewood Democrat, and Ross McGregor, a Springfield Republican, introduced their bill Sept. 27. Two years ago, in a 56-39 vote, the House passed a similar bill, co-sponsored by McGregor and then-Rep. Dan Stewart, a Columbus Democrat. The Senate failed to act, so the bill died when the 128th General Assembly went home last December.
Ohio already bans discrimination -- in jobs, housing or public accommodation -- based on age, race, color, religion, sex, national origin, disability or military status. Antonio and McGregor's House Bill 335 would add sexual orientation and gender identity to the list.
This is hardly a radical concept. Polls show that Americans overwhelmingly believe that gays, lesbians, bisexual and transgender people should not face discrimination at work. The idea seems so obvious that large majorities of Americans assume it already is the law -- even in states such as Ohio, where it's not.A respectable publication like the Plain Dealer reality-checking that gay rights are "hardly a radical concept" can only help.
As can the elevating the public profile of people like Glenn, Hutchinson and Crump.
One fairly common theme that has resonated throughout the "what happened with ENDA?" post-mortem is the recognition there is no face of ENDA. If one sees a person speaking of ENDA in the media, chances are very good it's Joe Solomnese, outgoing president of the Human Rights Campaign. Perennial DC-insider Solomnese with his Brooks Brothers suits, Gucci loafers and insider-worthy $318,475 salary makes, shall we say, an imperfect spokesperson to speak on behalf of the social workers, policemen and state and blue-collar workers who experience this discrimination daily. But who is there?
How did repeal of DADT pass? First, like the Hate Crimes bill, there was a human face put to the terrible price of DADT. The faces of repeal of DADT were: Mike Almy, Alistair Gamble, Blue Copas, Darren Manzella, Monica Hill, Stacey Velasquez, Victor Ferhenbach, Joseph Rocha, Dan Choi, Alex Nicholson, Jonathan Hopkins, Katy Miller, Jules Sohn, Justin Elzie, Grette Cammermeyer, Joe Steffen, Tracy Thorn, Keith Mienhold, Rich Richardson, Rich Watson, Margaret Witt, Steve May, Zoe Dunning, Eric Alva, Jenny Kopfstein, Anthony Loverde, Stephen Vosslerand many others.
Where are the faces for ENDA? ENDA – a jobs bill – has languished because there has not been a sufficient education of the public and Congress about how terrible the lack of non-discrimination in employment is to our community.
The case for ENDA has not yet been personalized. We have no poster person. Other than GetEQUAL disrupting a congressional hearing – where is the direct action to publicize the harms of LGBT job discrimination? Where is the press? Where are the educational grassroots efforts such as the DADT repeal “Call to Duty?”
And he's right. There is no widely recognized face of LGBT employment discrimination. The fight for ENDA has been marked by constant recitation of statistics, numbers of victims, polling support for legislative remedies, pie charts, graphs and maps.
Consider these names: Lilly Ledbetter, Ryan White, Matthew Shepard, James Byrd, Jim Brady, Meghan Kanka, Amber Hagerman, James Zadroga of the 9/11 first responders.
You can say the name and many Americans know the gist of the law they inspired, and the injustice or problem it was intended to correct. This is testament to public education campaigns that have gone very right and successfully delivered the popular support to make voting yes a tenable if not desirable position.
The 9/11 first responders visit with Jon Stewart on the Daily Show.
There is still a very major victory that Speaker Boehner would be powerless to block, and it would simply require President Obama to be the fifth president to amend Franklin D. Roosevelt's Executive Order 11246, this time to include sexual orientation and gender identity. Advocates have been pushing for this since transition and such a move may be closer than many imagine. More on that next week.