Clearing the Air on ENDA

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December 5, 2013
Supervising Senior Staff Attorney Gregory R. Nevins

Some people have claimed that the federal Employment Non-Discrimination Act (ENDA) will create a “new” right and lead to a surge in frivolous lawsuits.

Others have taken the opposite tack, claiming that LGBT people already are protected under existing law. And the person who is probably the biggest roadblock to ENDA becoming law actually makes both claims simultaneously.

So what is the truth?

First, to the claim that LGBT people are protected under existing law, let me advance a radical proposition: The fact that many federal courts over the last decade, and the commission responsible for enforcing federal nondiscrimination law (the Equal Employment Opportunity Commission [EEOC]), have ruled in favor of transgender employees under Title VII or other comparable law is no reason not to pass ENDA.

As support, I submit the case of Vandy Beth Glenn, fired after her boss determined the legal research he conducted was, in his mind, inconclusive, and who went on to win one of the biggest transgender employment cases to date. In his deposition, Ms. Glenn’s boss summed up the research: “there were some legal authorities that would make that an inappropriate termination ... [and] other legal authorities which cut the other way.”While most of the legal research may have indicated it was “an inappropriate termination” because there wasn’t a clear and unanimous statement in the law that firing a transgender employee was illegal — the kind of definitive clarity that ENDA would provide — Ms. Glenn’s boss rolled the dice, took his chances, and wasted Georgia taxpayers’ dollars in the futile hope that his discriminatory firing would be legally vindicated.

Nobody needs that — most of all, not my client Ms. Glenn, who was thrilled with her legal victory, but who would have been a lot more thrilled never to have been discriminated against and forced to leave her job in the first place.(Read more about the Glenn case here, and watch Vandy Beth’s congressional testimony here).

As for whether employees are protected from sexual orientation discrimination under Title VII, there is in fact a very strong argument that they are — an argument Lambda Legal madeearlier this year in this brief, and that is gaining increasing acceptance by the EEOC. Both the EEOC and at least two courts in five separate proceedings have recognized that Title VII proscribes mistreatment experienced by an employee in an intimate relationship deemed contrary to societal norms for the employee’s gender. (These cases include: Brooker v. Donahoe, Castello v. Postmaster General, Veretto v. Postmaster GeneralHeller v. Columbia Edgewater Country Cluband Centola v. Potter.) However, this argument needs to gain more traction in the federal courts, and in the interim, LGBT employees remain vulnerable.

As for an increase in “frivolous” lawsuits, research conducted by the government and by academics shows that any increase in lawsuits would be minor and would have very little effect on small businesses, 90 percent of which are not covered by ENDA (even Title VII and the Americans With Disabilities Act exempt employers with 14 or fewer employees).

What does all of this suggest? ENDA is important because it makes a statement that hard-working employees will be judged on their merits and that discrimination won’t be tolerated.This clear statement will provide comfort to employees and clear guidance to employers. ENDA will prevent both painful terminations and needless lawsuits.